106 F.3d 383
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Rafael MERCADO, Petitioner,v.STATE of Rhode Island, Respondent.
No. 96-1247.
United States Court of Appeals, First Circuit.
Jan. 31, 1997.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon.  Raymond J. Pettine, Senior U.S. District Judge ]
Rafael Mercado on brief pro se.
Before SELYA, BOUDIN and LYNCH, Circuit Judges.
PER CURIAM.


1
Rafael Mercado has appealed an order of the district court, dated October 24, 1995, which, in accordance with a magistrate judge's recommendation, denied Mercado leave to file an untimely appeal from the January 17, 1995 denial of his habeas corpus petition.  There was no error as the court correctly concluded that the time within which the court could extend the time for appeal had already expired.  See Fed.  R.App. P. 4(a)(5).  Mercado does not contend that he did not timely receive notice of the judgment denying his habeas petition.  His claim that Fed.R.Civ.P. 60(b) should serve to excuse his failure to appeal is unavailing.


2
The order of October 24, 1995 is affirmed.

