United States v. Shifflett

9 F. App'x 272

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 29, 2001
• Docket: 01-6324
• Status: Unpublished

Opinion

PER CURIAM.

Michael Wayne Shifflett appeals the district court’s order denying relief on his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.2000), and a subsequent order denying relief on his motion filed pursuant to Fed.R.Civ.P. 60(b). A motion for reconsideration under Rule 60(b) does not bring up for review the merits of the underlying substantive judgement, nor does it toll the period for filing an appeal of the underlying judgment. See Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263 n. 7, 264-65, 268-69, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).

Because Shifflett did not file his Rule 60(b) motion within ten days of the district court’s order denying relief on his § 2255 motion, entered on November 20, 2000, the time period for filing his appeal of that order was not tolled. See Fed.RApp.P. 4(a)(4). Shifflett had sixty days to appeal the district court’s November order. See Fed.R.App.P. 4(a)(1)(B). He did not appeal until February 23, 2001, twenty-three days after the court denied reconsideration. Therefore, Shifflett’s appeal is only timely as to the district court’s denial of his subsequent motion for reconsideration. This court reviews a denial of a Rule 60(b) motion for abuse of discretion. See NOW v. Operation Rescue, 47 F.3d 667, 669 (4th Cir.1995).

We have reviewed the record and conclude that the district court’s denial of Shifflett’s motion for reconsideration did not constitute an abuse of discretion. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.