     Case: 09-60949 Document: 00511310850 Page: 1 Date Filed: 12/03/2010




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

                                                 FILED
                                                                          December 3, 2010
                                     No. 09-60949
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LAWRENCE A. RAY,

                                                   Plaintiff-Appellant

v.

RONNIE PENNINGTON, Sheriff, Rankin County Jail,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:07-CV-175


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Lawrence A. Ray filed a complaint pursuant to 42 U.S.C. § 1983 claiming
violations of his constitutional rights based on a period of pretrial confinement
in a state criminal case. His case was dismissed in a final judgment. This
appeal is from the November 5, 2009 order denying his motion to reopen the
case. Because that motion sought relief from the final judgment and was filed
more than 10 days after the entry of judgment, it is considered a motion under
Federal Rule of Civil Procedure 60(b). See Teal v. Eagle Fleet, Inc., 933 F.2d 341,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60949 Document: 00511310850 Page: 2 Date Filed: 12/03/2010

                                       No. 09-60949

347 (5th Cir. 1991).     Ray’s notice of appeal was not timely as to the final
judgment dismissing his case. Thus, this court lacks jurisdiction to review the
merits of that judgment. See Bowles v. Russell, 551 U.S. 205, 214 (2007); Knapp
v. Dow Corning Corp., 941 F.2d 1336, 1337-38 (5th Cir. 1991). Instead, Ray’s
appeal is limited to review of the order denying his Rule 60(b) motion. See Pryor
v. U.S. Postal Serv., 769 F.2d 281, 284-86 (5th Cir. 1985).
        The denial of a Rule 60(b) motion is reviewed for abuse of discretion.
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). “It is not enough
that    the   granting   of   relief   might    have   been   permissible,   or   even
warranted–denial must have been so unwarranted as to constitute an abuse of
discretion.” Id. Ray contends that incompetence and misconduct by his counsel
effectively deprived him of all representation in his case.          Ray’s case was
dismissed after consideration of the merits of his claims, and Ray has not shown
that there was malfeasance by his counsel warranting relief from the judgment.
See Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 697 (5th Cir. 1983). The
magistrate judge’s denial of Ray’s Rule 60(b) motion did not constitute an abuse
of discretion.
        Ray also reiterates the merits of his claims regarding his pretrial
confinement. Those contentions are unavailing in this appeal, as his Rule 60(b)
motion may not be used as a substitute for a direct appeal of the merits of the
dismissal of his case. See Knapp, 941 F.2d at 1338.
        AFFIRMED.




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