United States v. Murray

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-20883
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO SMALLHORN MURRAY,
Defendant-Appellant.
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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
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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 28 U.S.C. § 2255 motion to vacate his sentence.

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No. 05-20883
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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.

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