IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41453 Conference Calendar

THOMAS C. DAVIS,

Plaintiff-Appellant,

versus

JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JIMMIE E. ALFORD, Warden of Michael Unit; PEGGY THOMPSON, Coordinator of Interstate Corrections,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:92-CV-308 - - - - - - - - - - February 10, 1999

Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*

PER CURIAM:**

Thomas C. Davis, Texas prisoner # 342624, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s denial of his motion to

reopen the time to file an appeal. Davis also moves for leave to

* This matter is being decided by a quorum.

(d). ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41453 -2-

amend his complaint and for appointment of counsel. The motions

for leave to amend and for appointment of counsel are DENIED.

By moving for IFP, Davis is challenging the district court’s

certification that IFP should not be granted on appeal because

his appeal presents no nonfrivolous issues. See Baugh v. Taylor,

(5th Cir. 1997). The district court entered

final judgment dismissing Davis’ civil rights lawsuit on March

30, 1993. Davis moved to reopen the time to file an appeal on

September 12, 1997, more than four years outside the appeal

period.

Rule 4(a)(1), Fed. R. App. P., requires that the notice of

appeal in a civil action be filed within 30 days of entry of the

judgment or order from which appeal is taken. Rule 4(a)(6), Fed.

R. App. P., is the mechanism for a party to obtain relief when he

has failed to file a timely notice of appeal. Davis has not met

the requirements of Rule 4(a)(6) because he did not file the

motion to reopen the appeal period within 180 days after the

judgment or order was entered. Accordingly, the district court

was without jurisdiction to grant Davis an out-of-time appeal.

Davis’ motion is also construed as a request in this court

for leave to take an out-of-time appeal. We have no authority to

enlarge the time for filing the notice of appeal. See Fed.

R. App. P. 26(b)(1).

Accordingly, we uphold the district court’s order certifying

that Davis’ appeal presents no nonfrivolous issues. Davis’

request for IFP status is DENIED, and his appeal is DISMISSED as

frivolous. See Baugh,

n.24; 5TH CIR. R. 42.2. No. 97-41453 -3-

We caution Davis that any additional frivolous appeals filed

by him or on his behalf will invite the imposition of sanctions.

To avoid sanctions, Davis is further cautioned to review any

pending appeals to ensure that they do not raise arguments that

are frivolous.

IFP DENIED; MOTION FOR LEAVE TO AMEND COMPLAINT DENIED;

MOTION FOR APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED;

SANCTION WARNING ISSUED.