United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-30044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVESTER TOLLIVER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:92-CR-20008-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Sylvester Tolliver, federal prisoner # 24806-013, appeals from
the district court’s denial of his FED. R. CIV. P. 60(b)(6) motion.
In his motion, Tolliver argued that his 1996 post-conviction
“motion to dismiss 18 U.S.C. § 924(c)(1),” i.e., count three of his
indictment, was improperly recharacterized as a 28 U.S.C. § 2255
motion in violation of Castro v. United States, 540 U.S. 375
(2003). Because the Rule 60(b) motion does not seek to challenge
the underlying offense of conviction, the district court had
*
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this opinion should not be published and is not precedent except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. 05-30044
-2-
jurisdiction to deny the motion. See Hess v. Cockrell, 281 F.3d
212, 214-15 (5th Cir. 2002); cf. Fierro v. Johnson, 197 F.3d 147,
151 (5th Cir. 1999). Because Tolliver’s Rule 60(b) motion should
not be construed as a successive § 2255 motion, the effect of the
ruling in Castro on Tolliver’s initial motion is not relevant.
We review the district court’s denial of Tolliver’s Rule
60(b)(6) motion for abuse of discretion. See Dunn v. Cockrell, 302
F.3d 491, 492 (5th Cir. 2002). The record reflects that vacating
the district court’s recharacterization of Tolliver’s 1996 motion
to dismiss as a § 2255 motion would result in the withdrawal of
relief that the court had granted Tolliver. Further, Tolliver’s
Rule 60(b)(6) motion was filed eight years after the district court
recharacterized his 1996 motion to dismiss. Tolliver fails to
demonstrate why his dilatory Rule 60(b)(6) motion should be
considered filed within a reasonable period of time. See Travelers
v. Liljeberg Enters. Inc., 38 F.3d 1404, 1410 (5th Cir. 1994).
Accordingly, the district court did not abuse its discretion in
denying Tolliver’s Rule 60(b)(6) motion. See Dunn, 302 F.3d at
492.
For the first time on appeal, Tolliver argues that the
district court abused its discretion in denying his motion under
Rule 60(b)(5). This argument will not be considered. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
AFFIRMED.