Case: 10-31215 Document: 00511483680 Page: 1 Date Filed: 05/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 19, 2011
No. 10-31215
Summary Calendar Lyle W. Cayce
Clerk
EREEDIUS GROSS,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-3353
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Ereedius Gross, Louisiana prisoner # 3518216, moves for a certificate of
appealability (COA) to appeal from the district court’s denial of his motion for
relief pursuant to Federal Rule of Civil Procedure 60(b) following the dismissal
of his 28 U.S.C. § 2254 habeas corpus application. Gross challenges his
conviction of murder. We previously dismissed Gross’s appeal from the
underlying habeas dismissal for lack of jurisdiction because he filed an untimely
notice of appeal. Gross v. Cain, No. 10-30515 (5th Cir. Aug. 4, 2010)
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-31215 Document: 00511483680 Page: 2 Date Filed: 05/19/2011
No. 10-31215
(unpublished). Gross also moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that his appeal is not taken in good
faith.
Gross’s Rule 60(b) motion sought to reopen the time for him to file a notice
of appeal from the judgment dismissing his habeas corpus application. He does
not need a COA to take an appeal from the Rule 60(b) denial, see Dunn v.
Cockrell, 302 F.3d 491, 492-93 (5th Cir. 2002); his COA motion is DENIED as
unnecessary.
Upon receipt of the district court’s judgment, Gross could have filed a
timely notice of appeal or obtained relief pursuant to Federal Rule of Appellate
Procedure 4(a)(5), which allows for an extension of the period for filing a notice
of appeal upon a showing of excusable neglect or good cause, if that motion is
made within 30 days of the expiration of the 30-day period set out in Rule
4(a)(1)(A). He cannot circumvent Rule 4(a)(5) with a Rule 60(b) motion. See
Dunn, 302 F.3d at 492-93.
Gross’s appeal is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983); 5 TH C IR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.
2