United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 10, 2004
Charles R. Fulbruge III
Clerk
No. 03-10694
Summary Calendar
DALE ANDERSON,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-00157
USDC No. 4:02-CV-00158
USDC No. 4:02-CV-00159
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Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Dale Anderson, Texas prisoner # 909781, appeals the denial
of his FED. R. CIV. P. 60(b) motion challenging the dismissal and
denials of his three consolidated 28 U.S.C. § 2254 applications.
The only issue before us is whether the district court abused its
discretion in denying Anderson’s Rule 60(b) motion. See Aucoin
v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991).
*
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that this opinion should not be published and is not precedent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.
No. 03-10694
-2-
The sole purpose of Anderson’s Rule 60(b) motion was to
circumvent the jurisdictional problem caused by his failure to
file a timely notice of appeal from the judgment denying habeas
relief. A Rule 60(b) motion, however, is not a substitute for a
timely appeal. Dunn v. Cockrell, 302 F.3d 491, 493 (5th Cir.
2002), cert. denied, 537 U.S. 1181 (2003). Moreover, the delay
in Anderson’s receipt of notice of the judgment denying habeas
relief does not qualify as an “extraordinary circumstance” under
Rule 60(b)(6). Although the time to file a notice of appeal had
expired when he received notice of the denial, Anderson failed to
take advantage of other remedies that were still available, such
as a motion for an extension of time or a motion to reopen the
time to file an appeal. See FED. R. APP. P. 4(a)(5) (motion for
an extension of time); FED. R. APP. P. 4(a)(6) (motion to reopen
time to file notice of appeal).
AFFIRMED.