                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 19, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20883
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICARDO SMALLHORN MURRAY,

                                    Defendant-Appellant.

                      --------------------
          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
                      --------------------

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.




     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-20883
                                 -2-

     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.
