     Case: 11-10889     Document: 00511811449         Page: 1     Date Filed: 04/04/2012




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

                                                                            FILED
                                                                            April 4, 2012
                                     No. 11-10889
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICHARD BOULDIN, also known as Waco,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CR-11-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Richard Bouldin, federal prisoner # 32154-177, proceeding pro se, whose
guilty-plea conviction became final in 2008, filed a notice of appeal from the 13
September 2011 denial of his motion for a new trial, under Federal Rule of
Criminal Procedure 33, and for relief from judgment, under Federal Rule of Civil
Procedure 60(b). Review is for abuse of discretion. E.g., United States v.
Franklin, 561 F.3d 398, 405 (5th Cir. 2009) (Rule 33); Warfield v. Byron, 436
F.3d 551, 555 (5th Cir. 2006) (Rule 60(b)).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10889    Document: 00511811449      Page: 2   Date Filed: 04/04/2012

                                  No. 11-10889

      Although Bouldin’s appellate brief also references the district court’s 19
September 2011 denial of his second motion for a new trial and relief from
judgment, his 19 September 2011 notice of appeal refers only to the 13
September denial. Thus, we lack jurisdiction to review the 19 September denial.
Fed. R. App. P. 3(c)(1)(B) (‘‘The notice of appeal must . . . designate the
judgment, order, or part thereof being appealed . . . .”); Gonzalez v. Thaler, 132
S. Ct. 641, 651-52 (2012) (Rule 3 is jurisdictional). See also Warfield v. Fidelity
and Deposit Co., 904 F.2d 322, 325 (5th Cir. 1990) (when appellant “notices the
appeal of a specified judgment only or a part thereof . . . this court has no
jurisdiction to review other judgments or issues which are not expressly referred
to and which are not impliedly intended for appeal” (internal quotation marks
omitted)).
      The district court found Bouldin’s Rule 33 motion untimely. See Fed. R.
Crim. P. 33(b) (providing three-year time limit when ground for new trial is
newly discovered evidence; otherwise, limit is 14 days). Bouldin’s assertion that
the time limits under Rule 33 should have been equitably tolled is not
adequately briefed and therefore waived. Fed. R. App. P. 28(a)(9)(A). Bouldin
also contends, citing Eberhart v. United States, 546 U.S. 12 (2005), that the
district court erred by dismissing sua sponte his motion for untimeliness. In
Eberhart, the Supreme Court concluded the time requirements for Rule 33 are
nonjurisdictional claims-processing rules and that the Government forfeited the
untimeliness defense by not raising it until after the district court decided the
motion on the merits. 546 U.S. at 19.        Bouldin’s reliance on Eberhart is
misplaced. The district court denied Bouldin’s motion the day after it was filed,
without participation by the Government. A “district court does not err, after
Eberhart, if it enforces an inflexible claim processing rule, and we may not
reverse its decision to do so”. United States v. Leijano-Cruz, 473 F.3d 571, 574
(5th Cir. 2006).



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   Case: 11-10889   Document: 00511811449      Page: 3   Date Filed: 04/04/2012

                                  No. 11-10889

      To the extent Bouldin’s motion also invoked Rule 60(b), the district court
ruled correctly that the Federal Rules of Civil Procedure do not apply to criminal
cases. United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999).
      AFFIRMED.




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