USA vs. Murray (5th Cir. 2007)

Federal Circuits, 5th Cir. (June 19, 2007)

Docket number: 05-20883

Not Published
Permanent Link: http://vlex.com/vid/usa-vs-murray-28353268
Id. vLex: VLEX-28353268

Click here to download this article in graphic format (Acrobat Reader)

Document language

Request manual translation

Search in this document

Document options

Citations:

Loading article preview... cerrar

U.S. Court of Appeals for the 5th Cir. - Henry Earl Dunn, Petitioner-Appellant, v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 302 F.3d 491 (5th Cir. 2002)

U.S. Court of Appeals for the 5th Cir. - Dorothy A. Edwards; Afro-American Police Officers League; Houston Police Organization of Spanish Speaking Officers; Lionel Aaron; Bennie Conway; Clement B. Crosby, Jr.; Jose A. Garcia; Richard C. Garcia; Maria L. Guillory; Anthony R. Jammer; Charles A. Mcclelland; Silas Montgomery, Jr.; Clyde Phillpot; Carl Wayne Reed; Richard M. Spencer; Bruce D. Williams; Plaintiffs-Appellees, Terry Hughes, Individually and as a Representative of the Houston Airport Police Officers Association and Its Officers and Sergeants of the Former Airport Police Force, Houston Police Patrolmen'S Union, and the Individual Peace Officers Identified in Appendix A, an Affiliate of the International Union of Police Associations Afl-Cio, Local 109; Haril Walpole; Frank L. Adamek; Joe M. Aldaco; William E. Baker; T. Barankowski; Jerry A. Briscoe; Ronnie P. Brooks; Gregory P. Countie; J. Devereux; Russell Feussel; Barbara Gastmyer; James Klein; Donald Klepac; Steven Mccreary; Donnie Pardue; James Pritchard; L...., 78 F.3d 983 (5th Cir. 1996) Jr.; Jose A. Garcia; Richard C. Garcia; Maria L. Guillory; Anthony R. Jammer; Charles A. Mcclelland; Silas Montgomery, Jr.; Clyde Phillpot; Carl Wayne Reed; Richard M. Spencer; Bruce D. Williams; Plaintiffs-Appellees, Terry Hughes, Individually and as a Representative of the Houston Airport Police Officers Association and Its Officers and Sergeants of the Former Airport Police Force, Houston Police Patrolmen'S Union, and the Individual Peace Officers Identified in Appendix A, an Affiliate of the International Union of Police Associations Afl-Cio, Local 109; Haril Walpole; Frank L. Adamek; Joe M. Aldaco; William E. Baker; T. Barankowski; Jerry A. Briscoe; Ronnie P. Brooks; Gregory P. Countie; J. Devereux; Russell Feussel; Barbara Gastmyer; James Klein; Donald Klepac; Steven Mccreary; Donnie Pardue; James Pritchard; L....

U.S. Court of Appeals for the 5th Cir. - Mrs. Charlotte Wilson, Plaintiff, v. the Atwood Group and Occidental Petroleum Corp., Defendants-Appellees Cross-Appellants, v. Kirby L. Stark, Worldwide Drilling Consultants, Inc. and Hartford Accident and Indemnity Co., Third-Party Defendants-Appellants Cross-Appellees., 725 F.2d 255 (5th Cir. 1984) Plaintiff, v. the Atwood Group and Occidental Petroleum Corp., Defendants-Appellees Cross-Appellants, v. Kirby L. Stark, Worldwide Drilling Consultants, Inc. and Hartford Accident and Indemnity Co., Third-Party Defendants-Appellants Cross-Appellees.

See other documents that cite the same legislation

Text:

United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

June 19, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-20883

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO SMALLHORN MURRAY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:01-CR-249-ALL

USDC No. 4:04-CV-138

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:* Ricardo Smallhorn Murray, federal prisoner # 09279-017, is serving a 78-month term of imprisonment for the unauthorized use of another person's name and Social Security number. Through counsel, Murray seeks a certificate of appealability (COA) from the district court's denial of his motion for relief from judgment under FED. R. CIV. P. 60(b), which was filed after the denial of his 28U.S.C. § 2255 motion to vacate his sentence. Murray contends that the denial of his § 2255 motion was erroneous. This contention need not be considered because the appeal from the denial of a Rule 60(b) motion is not an appeal from the underlying judgment. See Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc).

Murray's Rule 60(b) motion was intended only to restart the period in which he could appeal the district court's 2004 denial of his § 2255 motion. No COA is required. See Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). The motion for a COA is denied as unnecessary.

Murray argues that the Rule 60(b) motion should have been granted because neither he nor his lawyer received notice of the denial of the § 2255 motion. Even if the clerk of court did fail to notify Murray or his lawyer, under FED. R. CIV. P. 77(d) that failure would not have excused Murray from filing a timely notice of appeal. See Wilson v. Atwood Group, 725 F.2d 255, 256-58 (5th Cir. 1984) (en banc). No exception to Rule 77 applies because Murray's Rule 60(b) motion was filed more than 180 days after entry of judgment. See FED. R. APP. P. 4(a)(6)(B). The denial of the Rule 60(b) motion is affirmed. See Dunn, 302 F.3d at 493.

COA DENIED AS UNNECESSARY; JUDGMENT AFFIRMED.

* 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.