                                NOT FOR PUBLICATION                          FILED
                         UNITED STATES COURT OF APPEALS                      SEP 23 2015
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 13-16976

             Plaintiff - Appellee,                  D.C. Nos. 1:03-cv-06609-AWI
                                                                         1:98-cr-
   v.                                               05294-AWI-1

 VICTOR LAMONT BROWN,
                                                    MEMORANDUM *
             Defendant - Appellant.

                       Appeal from the United States District Court
                           for the Eastern District of California
                     Anthony W. Ishii, Senior District Judge, Presiding

                               Submitted September 17, 2015**
                                  San Francisco, California

Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.

        After a jury trial, Victor Brown was convicted of conspiring to traffic in

cocaine, and possession of cocaine with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and 853. Brown filed a timely motion to vacate or set aside



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his conviction pursuant to 28 U.S.C. § 2255, which the district court denied on the

merits. Brown then filed a Rule 60(b) motion asking the district court to reopen

his § 2255 motion, which the district court construed as an uncertified second or

successive § 2255 motion and dismissed for lack of jurisdiction.

      Brown now appeals the district court’s order denying his Rule 60(b) motion,

as well as the district court’s order denying his original § 2255 motion, seeking

review of the merits as to certain claims presented therein. We dismiss as untimely

Brown’s appeal of the district court’s order denying his § 2255 motion, and affirm

the district court’s order dismissing Brown’s Rule 60(b) motion for lack of

jurisdiction.

      I.        Brown’s § 2255 Appeal

      This court does not have jurisdiction to review the district court’s order

denying Brown’s § 2255 motion because Brown failed to file a timely notice of

appeal (“NOA”) of that order. An appeal from a district court to a court of appeals

may be taken only by filing a timely NOA. Fed. R. App. P. 3(a); 4(a)(1). Failure

to file a timely NOA deprives the court of appeals of jurisdiction to review the

judgment. See Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978). If

neither party objects to an untimely NOA, this court must raise the issue sua

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sponte. See Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir. 1990).

      If, as here, the United States is a party to a civil action, a NOA must be filed

within 60 days after the entry of the judgment or order that the appellant wishes to

appeal. Fed. R. App. P. 4(a)(1)(B)(i). The commencement of the period for filing a

NOA is triggered by the proper entry of the judgment or order to be appealed in the

civil docket. Williams v. Borg, 139 F.3d 737, 739 (9th Cir. 1998); Fed. R. Civ. P.

58, 79(a). Here, the commencement of the NOA period relating to Brown’s § 2255

motion was triggered by the entry into the docket of the district court’s order

denying the § 2255 motion on April 20, 2012. A Rule 59 motion to alter or amend

the judgment, however, resets the notice-of-appeal period. Fed. R. App. P.

4(a)(4)(A)(iv). On July 11, 2012, the district court’s order denying Brown’s Rule

59(e) motion was entered into the docket, triggering the recommencement of the

NOA period. Thus, the relevant 60-day NOA period began on July 12, 2012, and

was set to expire on September 9, 2012.

      On August 1, 2012, Brown delivered a motion seeking “an extension of time

to file his Certificate of Appealability” to prison officials for filing. Construing

Brown’s pro se motion liberally, as we must, we interpret this filing as a motion for

extension of time to file a NOA brought pursuant to Federal Rule of Appellate

                                           3
Procedure 4(a)(5). Rule 4(a)(5) permits a district court to extend the time to file a

NOA if a party so moves within 30 days of the expiration of the 60-day clock, but

only permits the district court to extend the deadline to 1) 30 days after the close of

the NOA period (which in this case would be October 9, 2012), or 2) 14 days after

the date when its order granting the motion to extend is entered—whichever is

later. This request for an extension cannot itself be construed as a NOA because it

did not specify the order or judgment from which Brown planned to appeal, or the

court to which an appeal would be taken. Fed. R. App. P. 3(c).1

      On October 29, 2012, the district court entered an order providing Brown

until “Thursday, January 31, 2013 to file his motion for a certificate of

appealability with the Court.” But, interpreting Brown’s motion as seeking an

extension of the NOA deadline, the district court’s authority was limited to

extending the deadline to November 13, 2012, 14 days after the date the order was

entered, plus one day because the period ended on a holiday. Fed. R. App. P.

4(a)(5)(C); 26(a)(1)(C), (6)(A).

      Brown does not contend that he filed an express NOA of the district court’s

1
 Even if the motion for extension could be construed as a NOA, Brown’s appeal of
his § 2255 motion would fail on the merits.

                                           4
denial of his § 2255 motion before November 13, 2012, or that his motion for

extension of time should be construed as a NOA. Moreover, none of Brown’s

other filings within the NOA period provided sufficient notice under Federal Rule

of Appellate Procedure 3(c) to permit this court to construe them as an effective

NOA. See Estrada v. Scribner, 512 F.3d 1227, 1236 (9th Cir. 2008).

      Because Brown did not file an express NOA of the district court’s order

denying his § 2255 motion during the NOA period, and because none of the

documents Brown filed during the NOA period satisfy Rule 3(c), this court does

not have jurisdiction over the district court’s determination of the merits of

Brown’s § 2255 motion. Accordingly, Brown’s appeal of that order must be

dismissed.

      II.    Brown’s Rule 60(b) Appeal

      Brown contends that the district court abused its discretion when it construed

Brown’s Rule 60(b) motion as an uncertified second or successive § 2255 motion

and dismissed it for lack of jurisdiction. We affirm.

      The district court correctly construed Brown’s Rule 60(b) motion as a

second or successive § 2255 motion because “an attack based on . . . habeas

counsel’s omissions,” such as that made by Brown’s Rule 60(b) motion, “does not

                                           5
go to the integrity of the proceedings, but in effect asks for a second chance to have

the merits determined favorably.” Gonzalez v. Crosby, 545 U.S. 524, 532 n.5

(2005).

      Accordingly, the district court properly concluded that Brown’s Rule 60(b)

motion was a second or successive § 2255 motion, and that it had no jurisdiction to

consider it absent a certification from this court. § 2255(h). Construing this appeal

as a motion for certification of a second or successive petition, we conclude that

Brown’s Rule 60(b) motion’s is ineligible for certification because it neither

presents evidence that was unavailable to him when he filed his § 2255 motion, nor

asserts that he is entitled to relief under a new rule of constitutional law. Id.

      III.   Conclusion

      Because Brown’s appeal of the district court order denying his § 2255

motion was untimely noticed, we DISMISS it for lack of jurisdiction. Because the

district court correctly concluded that Brown’s Rule 60(b) motion was a second or

successive habeas petition, and because that motion is ineligible for certification,

we AFFIRM the district court’s order dismissing Brown’s Rule 60(b) motion for




                                            6
lack of jurisdiction. 2

        DISMISSED in part and AFFIRMED in part.




2
    Because we affirm, Brown’s motion for judicial notice is DENIED.

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