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United States Court of Appeals,

Fifth Circuit.

No. 94-60378

Summary Calendar.

Jimmy LANCASTER, Petitioner-Appellant,

v.

Dwight PRESLEY, et al., Respondent-Appellee.

Oct. 18, 1994.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

DUHÉ, Circuit Judge.

Pro Se Appellant Jimmy Lancaster (Lancaster) appeals from the

denial of his motion for relief from judgment or order pursuant to

Federal Rule of Civil Procedure 60(b). We affirm.

I. FACTS

On June 19, 1982, Jimmy Lancaster was convicted of capital

murder in Mississippi state court, and sentenced to life in prison.

The Mississippi Supreme Court affirmed his conviction. Lancaster

v. State, 472 So.2d 363, 368 (Miss.1985).

In July of 1987, Lancaster's counsel sought a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. In March of 1989, a

Magistrate Judge recommended that the habeas petition be denied.

R. at 23. Lancaster failed to object, and the district court

adopted the magistrate's recommendation. Id. at 38.

In May 1989, Lancaster's counsel filed a notice of appeal with

the district court, and, on August 28, 1989, he filed his brief
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with this Court. On December 5, 1989, this court struck

Appellant's brief for failure to conform with Federal Rule of

Appellant Procedure 28(g) and Fifth Circuit Local Rule 28.1.

Lancaster's counsel failed to file an amended brief to cure the

procedural defects, and we ordered the appeal dismissed for failure

to prosecute on March 28, 1990. We denied Appellant's motion for

enlargement of time to file his brief on May 7, 1990.

In June 1991—fifteen months after the appeal had been

dismissed, and sixteen months after the last communication from his

attorneys—Lancaster wrote to this Court to inquire as to the status

of his appeal. Less than a week later, our Court Clerk informed

Lancaster that his appeal had been dismissed in March of the

previous year.

Over the next eighteen months Lancaster attempted to locate

counsel to prosecute his appeal. He initially tried,

unsuccessfully, to contact his previous attorneys. Next, Lancaster

sought assistance within the inmate community. In February 1992,

Lancaster located an inmate who claimed to have the requisite

understanding to handle his cause, however, this inmate could not

provide assistance for two or three months. In May 1992, with the

assistance of new "counsel," Lancaster attempted to retrieve his

file and records from his previous attorneys. The file and records

were finally obtained in December 1992.

On December 29, 1992, over two-and-a-half years after

dismissal of his appeal, Lancaster filed in the district court a

Rule 60(b) motion to vacate or set aside its judgment denying him
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habeas relief. In November 1993, the district court denied

Appellant's motion. R. at 84. Lancaster petitioned the district

court in January 1994 for leave to appeal the court's order out of

time. R. at 92. The district court granted leave to file the

appeal and a Certificate of Probable Cause, on May 25, 1994. R. at

105 and 107. Notice of this appeal was filed nunc pro tunc January

12, 1994. R. at 108.

II. STANDARD OF REVIEW

We employ an abuse of discretion standard in our review of

the district court's denial of Appellant's Rule 60(b)(6) motion.

Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th Cir.1993). "To

overturn the district court's denial of this 60(b) motion, it is

not enough that a grant of the motion might have been permissible

or warranted; rather, the decision to deny the motion must have

been sufficiently unwarranted as to amount to an abuse of

discretion." Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977).

III. DISCUSSION

In his Rule 60(b)(6) motion, Lancaster petitioned the

district court to set aside its April 1989 order denying his

application for writ of habeas corpus. The petition asked the

district court, after vacating the previous order, to file a new

order again denying the writ, thereby affording him the opportunity

to file a timely appeal. Appellant asserted that such action

would be a proper exercise of this Court's discretion to grant

the relief sought because Petitioner Lancaster's appeal to the

Fifth Circuit was dismissed due to gross negligence on the

part of his attorneys with him being neither aware of their

conduct nor participating in it in any way. Through no fault

of his own, Petitioner Lancaster has been deprived of his
 

1"This Court has ... repeated and firmly held that Rule

60(b) cannot be used to extend the time for appeal." The purpose

behind that firm rule is explained by Professor Wright in his

section on Rule 60(b)(6):

The broad power granted by clause (6) is not for the

purpose of relieving a party from free, calculated, and

deliberate choices he has made. A party remains under

a duty to take legal steps to protect his own

interests. In particular, it ordinarily is not

permissible to use this motion to remedy a failure to

take an appeal. However this is not an inflexible rule

and in unusual cases a party who has not taken an

appeal may obtain relief on motion.

In re Air Crash at Dallas/Fort Worth Airport, 852 F.2d 842,

844 (5th Cir.1988). 

 

2See also, Fed.R.Civ.P. 77(b); In re Jones, 970 F.2d 36,

38-39 (5th Cir.1992) (Setting forth the 1991 Amendments to

Fed.R.Civ.P. 77(d) and Fed.R.App.P. 4(a), which now permit a

district court to enlarge the time to file an appeal where 1) a

party fails to receive notice from the district court clerk

within 21 days of entry of a judgment or order; 2) no party is

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right to appeal and his day in court in the appellate court to

which he was appealing.

R. at 52.

On its face, Lancaster's petition violates a fundamental tenet

of this Circuit's construction of Rule 60(b), i.e., Rule 60(b)

cannot be used to extend the time to appeal.1 The fact that

Appellant lacked contemporaneous knowledge of the entry of

dismissal is not material to this issue. Cf. Wilson v. Atwood

Group, 725 F.2d 255, 256-58 (5th Cir.1984) (en banc), cert.

dismissed, 468 U.S. 1222, 105 S.Ct. 17, 82 L.Ed.2d 912 (1984) ("We

have consistently held that the simple failure of the clerk to mail

notice of the entry of judgment, without more, does not permit

relief to a party who has failed to appeal within the prescribed

time").2
prejudiced; and 3) a motion is filed within 180 days of entry or

7 days of receipt of notice, whichever is earlier). 

 

3See e.g. Griggs v. Provident Consumer Discount Co., 459

U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982) (per

curiam) ("The filing of a notice of appeal is an event of

jurisdictional significance—it confers jurisdiction on the court

of appeals and divests the district court of its control over

those aspects of the case involved in the appeal"). 

 

4See Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1083

(5th Cir.1984) ("Rule 60(b) was not designed to operate as an

insurance mechanism for clients. Its purpose is not to give

relief to the client who does not choose the best lawyer for the

job"). 

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Appellant's petition, however, goes beyond a simple request

for an extension of time to file an appeal. In this case,

Appellant is not the victim of counsel who failed to file an

appeal, rather Appellant is the victim of counsel who improperly

filed an appeal, and then allowed the time to perfect the appeal to

lapse. As a result of counsel's neglect, this Court dismissed

Appellant's appeal for failure to prosecute, and subsequently

denied his motion for enlargement of time to file the brief.

In effect, Lancaster asks the district court to use Rule

60(b)(6) to overturn this Court's dismissal of his appeal. Quite

obviously, the district court lacks jurisdiction to overturn an

order of this Court.3 Rule 60(b)(6) was not intended as a remedy

for all wrongs, and certainly does not confer super-appellate

jurisdiction on the district court.4

IV. CONCLUSION

After a thorough review of the law and the record, we conclude

that the district court lacked jurisdiction to grant Appellant's

Federal Rule of Civil Procedure 60(b)(6) motion. Judge Davidson
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properly exercised discretion in denying the motion. The order of

the district court is AFFIRMED.