* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31162 Summary Calendar UNITED STATES OF AMERICA Plaintiff-Appellee v. THOMAS ANTHONY BAIN Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:04-CR-50008-1 USDC No. 5:06-CV-1428 Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * Thomas Anthony Bain, federal prisoner # 12106-035, pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine and possession with intent to distribute 50grams or more of methamphetamine. He filed a 28 U.S.C. § 2255 motion challenging his convictions that w

as denied. Following the denial of his § 2255 motion, Bain filed a purported F ED . R. C IV. P. 52(b) motion to amend the findings underlying United States Court of Appeals

Fifth Circuit 

### F I L E D February 10, 2009 Charles R. Fulbruge III ClerkNo. 07-31162

2 the district court’s denial of his § 2255 motion and three motions to amend the purported F ED . R. C IV. P. 52(b) motion. The district court denied all four motions. B ain seeks to challenge the denial of his purported F ED . R. C IV. P. 52(b) motion and the three motions to amend the purported F E D . R. C IV. P. 52(b) motion in the present appeal. The present appeal, however, was initiated by Bain’s filing of a notice of appeal specifically appealing only the district court’s denial of his third motion to amend his purported F ED . R. C IV. P. 52(b) motion. Because Bain’s notice ofappeal specified that he was appealing only the denial of his third motion to amend his purported F ED . R. C IV. P. 52(b) motion, Bain may challenge only the denial of that motion in the present appeal. See C. A. May Marine Supply Co. v. Brunswick Corp. , 649 F.2d 1049, 1056 (5th Cir. July 1981).Under certain circumstances, Bain’s third motion to amend his purported F ED . R. C IV. P. 52(b) motion could be considered a timely F E D . R. C IV. P. 52(b) motion if his initial F ED . R. C IV. P. 52(b) motion was timely filed. Cf. Pruett v. Marshall , 283 F.2d 436, 440 (5th Cir. 1960) (holding that later filed amendment to a timely F ED . R

. C IV . P. 59 motion for new trial may be considered by the district court in some, but not all, circumstances). Bain’s purported F E D . R. C IV. P. 52(b) motion, however, was not filed within 10 days of the entry of the judgment denying his § 2255 motion. Thus, while Bain argues that his initial F ED . R. C IV. P. 52(b) motion was timely because it was filed within 10 days ofhis receipt of the j udgment, the initial purported F E D . R. C IV. P. 52(b) motion was not timely filed. See F ED . R. C IV. P. 52(b). Accordingly, Bain’s third motion to amend his purported F ED . R. C IV. P. 52(b) motion, the subject of the present appeal, was not timely filed. See id. As Bain’s third motion toamend his purported F ED . R. C IV. P. 52(b) motion challenged the underlyingjudgment, requested reliefother than correction ofa purely clerical error, and was filed more than 10 days after entry of judgment,No. 07-31162

3 it is treated as a motion under F ED . R. C IV. P. 60(b). See Harcon Barge Co. v. D & G Boat Rentals, Inc. , 784 F.2d 665, 667 (5th Cir. 1986) (en banc). Bain requires a COA in order to appeal from the denial of that motion. See Ochoa Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007). The district court did not determine whether a COA should issue from the denial of the present motion. Accordingly, we lack jurisdiction over the present appeal. See United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997). Bain’s third motion to amend his purported F ED . R. C IV. P. 52(b) motion was a F ED . R. C IV. P. 60(b) motion that challenged the judgment denying his § 2255 motion on its merits and raised claims attacking his conviction and sentence. See Harcon Barge Co. , 784 F.2d at 667. Accordingly, the motion was a successive § 2255 motion that the district court did not have jurisdiction to consider. See Gonzalez v. Crosby, 545 U.S. 524, 530-32 & n.4 (2005). As this appeal is frivolous, we decline to remand this case to the district court for a COA determination and instead dismiss this appeal for lack of jurisdiction. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). APPEAL DISMISSED; MOTION FOR LEAVE TO FILE AN OUT-OFTIME REPLY BRIEF GRANTED; MOTION FOR COURT TO TAKE JUDICIAL NOTICE DENIED.