               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 96-20648
                          Conference Calendar



BOBBY JAMES GANN,

                                            Petitioner-Appellant,


versus

GARY L. JOHNSON,
Director, Texas Dep’t
of Criminal Justice,
Institutional Division,

                                            Respondent-Appellee.


                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                        USDC No. H-95-CV-80
                        - - - - - - - - - -
                           April 16, 1997
Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     We previously determined that Gann’s notice of appeal from

the order denying his 28 U.S.C. § 2254 petition was timely only

if Gann had filed a timely Fed. R. Civ. P. 59(e) motion, which

would have delayed the effective filing date of Gann’s notice of

appeal.   See Fed. R. App. P. 4(a)(4)(C).


     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                           No. 96-20648
                               - 2 -

     The court remanded the case to the district court to

determine whether a postjudment motion filed by Gann was

deposited in the prison mailing system within ten days of entry

of judgment, which would have rendered the motion a timely filed

Rule 59(e) motion.   See Gann v. Johnson, No. 96-20648 (5th Cir.

Nov. 11, 1996); Fed. R. App. P. 4(c).

     The district court determined that Gann’s motion was not

deposited in the prison mailing system within ten days of entry

of judgment based on the affidavit of the prison official who is

the custodian of the prison’s mail records.    Gann concedes that

he did not deposit the postjudment motion for mailing within ten

days of the entry of judgment.   Therefore, Gann’s postjudment

motion was not a Rule 59(e) motion which extended the time to

file an effective notice of appeal.   Gann’s notice of appeal

filed on June 28, 1996, was not timely and, thus, this court

lacks jurisdiction to address this appeal.

     Gann’s postjudgment motion must be construed as a Fed. R.

Civ. P. 60(b) motion.   See Harcon Barge Co. v. D & G Boat Rentals

784 F.2d 665, 667 (5th Cir. 1986) (en banc).    Gann has not

evinced an intent to appeal from the denial of the Rule 60(b)

motion.   Gann has not filed a new or an amended notice of appeal

from the order denying the Rule 60(b) motion.

     The appeal is DISMISSED for lack of jurisdiction.
