United States v. McMahan , 8 F. App'x 272 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
KLYNE MILTON MCMAHAN, JR., a/k/a
A. G. Ashburn, a/k/a Danny Burns,
a/k/a Belton McMahan, a/k/a Mac
McMahan, a/k/a Mark McMahan,
a/k/a Mark Gardner, a/k/a M. J.  No. 00-7186
Masterson, a/k/a Hughes Davies,
a/k/a Mark Kellam, a/k/a Mark
King, a/k/a John Mark McQuinn,
a/k/a Chris Sears, a/k/a Mark Sears,
a/k/a John West, a/k/a Mark West,
a/k/a John White,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-93-89-N, CA-97-1003-2)
Submitted: April 17, 2001
Decided: May 8, 2001
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed in part and vacated in part by unpublished per curiam opin-
ion.
2 UNITED STATES v. MCMAHAN
COUNSEL
Klyne Milton McMahan, Jr., Appellant Pro Se. Philip Eric Urofsky,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Klyne Milton McMahan seeks to appeal the district court’s orders
denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.
2000), and his motions to reconsider or alter or amend that order. For
the following reasons, we dismiss his appeal.
In a civil action involving the United States, parties are allowed
sixty days after the entry of the district court’s final order or judgment
to note an appeal. Fed. R. App. P. 4(a)(1)(B). However, if a party files
a motion to alter, amend or reconsider that judgment within ten days
of its entry, the sixty day period for noting an appeal is tolled until
that motion is resolved. Fed. R. App. P. 4(a)(4)(A).
The district court entered an order denying McMahan’s § 2255
motion on September 29, 1998. Although McMahan filed a motion
for reconsideration under either Rule 59(e) or Rule 60(b) twenty-one
days later, that motion was filed too late to toll the period in which
McMahan could file an appeal. Initially, because the motion for
reconsideration was not filed within ten days of the entry of the order
to which it relates, it can only be construed as a motion pursuant to
Rule 60(b), not Rule 59(e). See In re Burnley, 988 F.2d 1, 2-3 (4th
Cir. 1993). Furthermore, because McMahan’s Rule 60(b) motion for
reconsideration was not filed within ten days of the order denying his
§ 2255 motion, it could not toll the period in which he could file an
UNITED STATES v. MCMAHAN 3
appeal. Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, McMahan’s
appeal, filed two years after the denial of his § 2255 motion, is
untimely as to that order.*
Although McMahan’s notice of appeal is timely as to the denial of
his Rule 60(b) motion, we nevertheless cannot review the district
court’s denial of the Rule 60(b) motion on its merits. Under the Anti-
Terrorism and Effective Death Penalty Act of 1996, once an inmate’s
motion for relief pursuant to § 2255 has been denied, he may not file
a second or successive motion without leave of this court. 28
U.S.C.A. § 2244(b)(3)(A) (West Supp. 2000) ("AEDPA"). In his Rule
60(b) motion, however, McMahan raised for the first time the claim
that his trial counsel had prevented him from testifying in his defense.
Although this claim was known to McMahan at the time he filed his
§ 2255 motion and could have been raised at that time, it was not.
Accordingly, because McMahan’s Rule 60(b) motion raised a new
claim, under the AEDPA that motion constitutes a second § 2255
motion. See Johnson v. United States, 196 F.3d 802, 806 (7th Cir.
1999); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998); United
States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998).
In light of the successive nature of McMahan’s Rule 60(b) motion,
we vacate the district court’s orders with respect to that motion.
Under the AEDPA, McMahan was required to receive authorization
from this court before filing his Rule 60(b) motion for reconsidera-
tion. 28 U.S.C.A. § 2244(b)(3)(A). Because he did not, the district
court was without jurisdiction to consider that motion. See In re Page,
170 F.3d 659, 661 (7th Cir.), opinion supplemented on denial of
rehearing 179 F.3d 1024 (7th Cir. 1999). Similarly, the district court
*Although McMahan filed a motion for enlargement of time to file a
motion for reconsideration on the ninth day following the denial of his
§ 2255 motion, the filing of the motion for enlargement of time does not
change the outcome. The district court did not rule upon the motion, but
the terms of Fed. R. Civ. P. 6(b) preclude a district court from extending
the ten day period in which a Rule 59(e) motion must be filed. Nor could
McMahan’s Rule 60(b) motion relate back to his motion for enlargement
for that purpose, as to do so would render Rule 6(b) and Rule 59(e) nuga-
tory. See Hertz Corp. v. Alamo Rent-a-car, Inc., 16 F.2d 1126, 1128
(11th Cir. 1994).
4 UNITED STATES v. MCMAHAN
was also without jurisdiction to consider McMahan’s subsequent Rule
59(e) motion to alter or amend the order denying his Rule 60(b)
motion. Accordingly, we vacate the district court’s orders with
respect to those motions.
In light of the foregoing, we deny both McMahan’s motion to
appoint counsel and a certificate of appealability, and dismiss his
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 in the decisional process.
DISMISSED IN PART, VACATED IN PART