No. 99-40784 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40784 Conference Calendar

RAUL GOMEZ ET AL.,

Plaintiffs,

ERIC GLEN CHACHERE,

Plaintiff-Appellant,

versus

W. WARNER, Senior Warden; O. PEREZ, Assistant Warden; BALLARD, Health Administrator; WAYNE SCOTT, Director, Texas Department of Criminal Justice- Institutional Division,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-93-CV-115 -------------------- April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Eric Glen Chachere, Texas prisoner no. 583557, appeals the

judgment based upon the jury’s verdict for the defendants

rendered in his

civil rights case.

Although neither party has questioned appellate

jurisdiction, this court, if necessary, must sua sponte examine

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40784 -2-

the basis of its jurisdiction. Williams v. Chater,

(5th Cir. 1996); Mosley v. Cozby,

(5th Cir.

1987). A timely notice of appeal is necessary to the exercise of

appellate jurisdiction. United States v. Cooper,

(5th Cir. 1998). Chachere’s first attempt to file a notice

of appeal was ineffective because the request for appeal was

secondary to his request to set aside judgment and for a new

trial. See Mosley,

; see also Page v. DeLaune,

(5th Cir. 1988).

Chachere’s second notice of appeal was not timely to appeal

the underlying judgment or order denying his motion to set aside

the judgment. See Fed. R. App. P. 4(a)(1)(A). It is timely only

as to the district court’s denial of Chachere’s motion to

reconsider a ruling the magistrate judge made denying Chachere an

extension of time to file materials in support of his first

notice of appeal. Given that the first notice of appeal was

ineffective, the issue is moot. Chachere has thus filed no

effective notice of appeal, and his appeal is dismissed for lack

of jurisdiction.

APPEAL DISMISSED FOR LACK OF JURISDICTION.