Case: 10-31215 Document: 00511483680 Page: 1 Date Filed: 05/19/2011




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

                                                 FILED
                                                                            May 19, 2011
                                     No. 10-31215
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

EREEDIUS GROSS,

                                                   Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CV-3353


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Ereedius Gross, Louisiana prisoner # 3518216, moves for a certificate of
appealability (COA) to appeal from the district court’s denial of his motion for
relief pursuant to Federal Rule of Civil Procedure 60(b) following the dismissal
of his 28 U.S.C. § 2254 habeas corpus application.                  Gross challenges his
conviction of murder.         We previously dismissed Gross’s appeal from the
underlying habeas dismissal for lack of jurisdiction because he filed an untimely
notice of appeal.        Gross v. Cain, No. 10-30515 (5th Cir. Aug. 4, 2010)

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-31215 Document: 00511483680 Page: 2 Date Filed: 05/19/2011

                                    No. 10-31215

(unpublished). Gross also moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that his appeal is not taken in good
faith.
         Gross’s Rule 60(b) motion sought to reopen the time for him to file a notice
of appeal from the judgment dismissing his habeas corpus application. He does
not need a COA to take an appeal from the Rule 60(b) denial, see Dunn v.
Cockrell, 

, 492-93 (5th Cir. 2002); his COA motion is DENIED as
unnecessary.
         Upon receipt of the district court’s judgment, Gross could have filed a
timely notice of appeal or obtained relief pursuant to Federal Rule of Appellate
Procedure 4(a)(5), which allows for an extension of the period for filing a notice
of appeal upon a showing of excusable neglect or good cause, if that motion is
made within 30 days of the expiration of the 30-day period set out in Rule
4(a)(1)(A). He cannot circumvent Rule 4(a)(5) with a Rule 60(b) motion. See

.
         Gross’s appeal is frivolous. See Howard v. King, 

, 220 (5th
Cir. 1983); 5 TH C IR. R. 42.2.
         IFP DENIED; APPEAL DISMISSED.




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