* 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should not be published and is not precedent except under the limited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.

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 50 grams or more of

methamphetamine. He filed a 28 U.S.C. § 2255 motion challenging his

convictions that was denied. Following the denial of his § 2255 motion, Bain

filed a purported FED. R. CIV. 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

Clerk
No. 07-31162

2

the district court’s denial of his § 2255 motion and three motions to amend the

purported FED. R. CIV. P. 52(b) motion. The district court denied all four

motions.

Bain seeks to challenge the denial of his purported FED. R. CIV. P. 52(b)

motion and the three motions to amend the purported FED. R. CIV. 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 FED. R. CIV. P. 52(b) motion.

Because Bain’s notice of appeal specified that he was appealing only the denial

of his third motion to amend his purported FED. R. CIV. 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

FED. R. CIV. P. 52(b) motion could be considered a timely FED. R. CIV. P. 52(b)

motion if his initial FED. R. CIV. 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 FED. R. CIV. P. 59 motion for new trial may be considered by the

district court in some, but not all, circumstances). Bain’s purported FED. R. CIV.

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

FED. R. CIV.P. 52(b) motion was timely because it was filed within 10 days of his

receipt of the judgment, the initial purported FED. R. CIV. P. 52(b) motion was

not timely filed. See FED. R. CIV. P. 52(b). Accordingly, Bain’s third motion to

amend his purported FED. R. CIV. P. 52(b) motion, the subject of the present

appeal, was not timely filed. See id.

As Bain’s third motion to amend his purported FED.R.CIV.P.52(b) motion

challenged the underlying judgment, requested relief other than correction of a

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 FED. R. CIV. 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 FED. R. CIV. P. 52(b) motion

was a FED. R. CIV. 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 COURTTO TAKE JUDICIAL

NOTICE DENIED.