          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                 FILED
                                                               February 10, 2009
                               No. 07-31162
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

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


      *
      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should not be published and is not precedent except under the limited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. 07-31162

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,

                                         2
                                  No. 07-31162

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-OF-
TIME REPLY BRIEF GRANTED; MOTION FOR COURT TO TAKE JUDICIAL
NOTICE DENIED.




                                        3
