Lawrence Ray v. Ronnie Pennington

Filing

UNPUBLISHED OPINION FILED. [09-60949 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/27/2010 [09-60949]

Lawrence Ray v. Ronnie e: 09-60949 Cas Pennington

Document: 00511310850 Page: 1 Date Filed: 12/03/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60949 S u m m a r y Calendar December 3, 2010 Lyle W. Cayce Clerk

L A W R E N C E A. RAY, P la in t if f -A p p e lla n t v. R O N N IE PENNINGTON, Sheriff, Rankin County Jail, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:07-CV-175

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* L a w r e n c e A. Ray filed a complaint pursuant to 42 U.S.C. § 1983 claiming v io la t io n s of his constitutional rights based on a period of pretrial confinement in a state criminal case. His case was dismissed in a final judgment. This a p p e a l is from the November 5, 2009 order denying his motion to reopen the c a s e . Because that motion sought relief from the final judgment and was filed m o r e than 10 days after the entry of judgment, it is considered a motion under F e d e r a l Rule of Civil Procedure 60(b). See Teal v. Eagle Fleet, Inc., 933 F.2d 341,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 09-60949 Document: 00511310850 Page: 2 Date Filed: 12/03/2010 No. 09-60949 3 4 7 (5th Cir. 1991). Ray's notice of appeal was not timely as to the final

ju d g m e n t dismissing his case. Thus, this court lacks jurisdiction to review the m e r it s of that judgment. See Bowles v. Russell, 551 U.S. 205, 214 (2007); Knapp v . Dow Corning Corp., 941 F.2d 1336, 1337-38 (5th Cir. 1991). Instead, Ray's a p p e a l is limited to review of the order denying his Rule 60(b) motion. See Pryor v . U.S. Postal Serv., 769 F.2d 281, 284-86 (5th Cir. 1985). T h e denial of a Rule 60(b) motion is reviewed for abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). "It is not enough th a t the granting of relief might have been permissible, or even

w a r r a n te d ­ d e n ia l must have been so unwarranted as to constitute an abuse of d is c r e t io n ." Id. Ray contends that incompetence and misconduct by his counsel e f f e c t i v e ly deprived him of all representation in his case. Ray's case was

d is m is s e d after consideration of the merits of his claims, and Ray has not shown t h a t there was malfeasance by his counsel warranting relief from the judgment. See Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 697 (5th Cir. 1983). The m a g is tr a t e judge's denial of Ray's Rule 60(b) motion did not constitute an abuse o f discretion. R a y also reiterates the merits of his claims regarding his pretrial c o n fin e m e n t . Those contentions are unavailing in this appeal, as his Rule 60(b) m o t io n may not be used as a substitute for a direct appeal of the merits of the d is m is s a l of his case. See Knapp, 941 F.2d at 1338. A F F IR M E D .

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