Tilley v. United States ( 1994 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT






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        No. 94-1154

                                  RONALD E. TILLEY,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE
         
                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
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            Ronald E. Tilley on brief pro se.
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            Jay  P.  McCloskey, United  States  Attorney, James  L.  McCarthy,
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        Assistant United States Attorney, and Margaret D. McGaughey, Assistant
                                              _____________________
        United States Attorney, on brief for appellee.


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                                    July 22, 1994
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                 Per  Curiam.    Ronald  E.  Tilley,  a  pro  se  federal
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            prisoner, appeals the district court's  denial of his Fed. R.

            Civ. P. 60(b)(6)  motion for relief  from the district  court

            order dismissing his  28 U.S.C.   2255 motion  to vacate, set

            aside, or correct  his sentence.1  We review  denials of Rule

            60(b)  motions for abuse of discretion.  See Rodriguez-Antuna
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            v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).
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            We affirm the district court order. 

                 "It is settled  law in this circuit that  a motion which

            asks the  court to modify  its earlier disposition of  a case

            solely because  of an  ostensibly erroneous  legal result  is

            brought under Fed. R. Civ. P. 59(e).  Such a motion,  without

            more,  does not invoke  Fed. R. Civ.  P. 60(b). .  . . Absent

            fraud,  newly-discovered   evidence,  a   party's  pardonable

            omission,  or the  like --  none of  which  were meaningfully

            alleged --  [such a] motion must  be measured by the  Rule 59

            yardstick."    Rodriguez-Antuna   871  F.2d  at  2 (citations
                           ________________

            omitted).  Tilley alleges no grounds  which would entitle him

            to relief  under Rule 60(b).   His  sole basis for  relief is

            that  the  district court  erred,  as  a  matter of  law,  in

            refusing to give  retroactive effect to  a 1992 amendment  to

            U.S.S.G.   4A1.3,  p.s.   Consequently, the  motion should be

            viewed as a Rule 59(e) motion to alter or amend the judgment.

                                
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            1.  The  Federal Rules  of Civil  Procedure apply  to    2255
            proceedings.  Barrett v. United  States, 965 F.2d  1184, 1187
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            n.4 (1st Cir. 1992).

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            See Echevarria-Gonzalez  v. Gonzalez-Chapel, 849 F.2d  24, 26
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            (1st  Cir. 1988) ("'nomenclature  should not be  exalted over

            substance.'")  (quoting Lyell Theatre  Corp. v.  Loews Corp.,
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            682 F.2d 37, 41 (2d Cir. 1982)). 

                  Viewed  under  Rule  59(e),  Tilley's  motion  must  be

            dismissed as untimely filed.  Rule 59(e) requires a motion to

            alter  or amend  a judgment to  be "served not  later than 10

            days after  the entry of  the judgment."  The  district court

            judgment  denying Tilley's     2255  motion  was  entered  on

            December 22, 1993.  There is no indication in the record that

            the so-called Rule  60(b) motion was ever  served.  Moreover,

            it was not filed with the court until January 18, 1994,  more

            than  10 days,  after entry  of the  judgment.   The district

            court  therefore appropriately denied the motion. See  Vargas
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            v. Gonzalez, 975 F.2d 916,  918 (1st Cir. 1992) (holding that
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            district court lacked  jurisdiction to grant untimely  motion

            that sought relief that  could only be properly sought  under

            Rule 59(e)); Barrett  v. United States,  965 F.2d 1184,  1187
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            (1st   Cir.  1992)   (affirming  dismissal  of   motions  for

            reconsideration of  dismissal of    2255  petition on  ground

            that motions, viewed  as Rule 59(e) motions,  were untimely).

            Since the  Rule 59(e) motion  was untimely filed, it  did not

            toll  the  time  for  filing  a notice  of  appeal  from  the

            underlying  order dismissing  Tilley's    2255  motion.   See
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            Vargaz v. Gonzalez, 975 F.2d at 918.   
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                 Finally,  given that  the district  court  was under  no

            obligation to alter or amend  the judgment, its denial of the

            motion  to  reconsider   did  not  constitute  an   abuse  of

            discretion.  The  district court order dismissing  the motion

            for relief from judgment is therefore affirmed.
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