                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-60252
                        Conference Calendar



DAYRAL T. NATHAN,

                                    Plaintiff-Appellant,

versus

P.J. SMITH, W.L. WALLEY, JR., J.J. EASLEY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 3:02-CV-1717-LN
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Dayral T. Nathan, Mississippi prisoner # 38465, appeals the

dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(iii).   Nathan argues that the defendants, three

state court judges, violated his due process and equal protection

rights by denying his habeas corpus application as time-barred

and successive rather than addressing the merits.

     We note first that more than 10 days after the district

court's judgment, Nathan filed a motion for reconsideration,

     *
        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that this opinion should not be published and is not precedent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.
                             No. 03-60252
                                  -2-

which is properly classified as a FED. R. CIV. P. 60(b) motion.

See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665,

667 (5th Cir. 1986).   Nathan's notice of appeal, which

specifically designated the denial of the post-judgment motion as

the order being appealed, was timely only as to the denial of

that motion, and appellate review is limited to whether the

district court abused its discretion.       See Halicki v. Louisiana

Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); FED. R.

APP. P. 4(a).

     Nathan argues that the defendants had a duty to hear his

state habeas application because it was filed under a state law

exception to the limitations period for applications asserting

newly discovered evidence.    The district court properly concluded

that the defendants are entitled to absolute immunity from suit

and did not err by denying the motion to reconsider.       See Stump

v. Sparkman, 435 U.S. 349, 356-64 (1978); Mays v. Sudderth, 97

F.3d 107, 110-11 (5th Cir. 1996).

     Nathan's appeal is without merit and is frivolous.       Howard

v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).      Accordingly, his

appeal is DISMISSED as frivolous.    See 5TH CIR. R. 42.2.   The

dismissal of the appeal counts as a strike against Nathan for

purposes of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996).    Nathan is CAUTIONED that if he

accumulates three strikes, he may not proceed in forma pauperis

in any civil action or appeal while he is incarcerated or
                           No. 03-60252
                                -3-

detained in any facility unless he is in imminent danger of

serious physical injury.   See 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
