United States v. Joshua Davis ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA FREDERICK DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:16-cr-00381-RMG-1; 2:20-cv-
02053-RMG)
Submitted: November 18, 2021 Decided: November 22, 2021
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Remanded by unpublished per curiam opinion.
Joshua Frederick Davis, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Frederick Davis seeks to appeal the district court’s order denying his 28
U.S.C. § 2255 motion. Twenty-one days after the district court issued its order denying
the motion, Davis filed a letter challenging the factual determinations of the district court,
seeking subpoenas to compel the production of evidence, requesting reconsideration of the
denial of the motion, and inquiring about the possibility of appointment of counsel. ∗ The
district court has taken no action in response to this letter. “[I]f a post-judgment motion is
[timely] filed . . . and calls into question the correctness of that judgment it should be treated
as a motion under [Fed. R. Civ. P.] 59(e), however it may be formally styled.” MLC Auto.,
LLC v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008) (quoting Dove v. CODESCO,
569 F.2d 807, 809 (4th Cir. 1978)). “A motion to alter or amend a judgment must be filed
no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). Thus, Davis’
postjudgment motion is properly construed as a timely-filed Rule 59(e) motion.
Accordingly, we order a limited remand directing the district court to promptly
docket Davis’ letter as a Rule 59(e) motion and to consider the motion on its merits. If
either party is dissatisfied after the district court disposes of the Rule 59(e) motion and
timely files a notice of appeal or amends its current notice, Fed. R. App. P. 4(a)(4)(B)(ii),
any appeal from the district court’s final order will be consolidated with this appeal.
∗
Although Davis stated that his letter was a “request,” the substance of the pleading
seeks assistance and adjudication that is redressed by way of a motion.
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Regardless of the outcome of the Rule 59(e) motion, the record, as supplemented, will be
returned to this court for further consideration.
In ordering this limited remand, we express no opinion as to the merits of the
motion. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
REMANDED
3