Vial v. Lappin ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AVERY W. VIAL,
Petitioner-Appellant,
v. No. 98-7649
HARLEY LAPPIN,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-97-825-5-H2)
Submitted: April 20, 1999
Decided: May 5, 1999
Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael Morchower, Anthony G. Spencer, MORCHOWER, LUX-
TON & WHALEY, Richmond, Virginia, for Appellant. Janice Mc-
Kenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Robert E. Skiver, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Avery W. Vial appeals the district court's order denying his motion
for relief, in which he sought to reopen the period in which to appeal
the district court's denial of his 28 U.S.C. § 2241 (1994) motion. We
affirm.
Vial is serving a 157-month sentence imposed in 1992. He retained
Virginia attorney Michael Morchower to represent him in his § 2241
action. Morchower associated Marvin Sparrow of Raleigh, North Car-
olina, as Vial's local counsel.
The district court denied Vial's § 2241 motion by order entered on
May 15, 1998. There is no dispute that Sparrow timely received a
copy of the judgment. The district court did not send another copy of
the judgment to Morchower. No notice of appeal was filed. When
Morchower learned of the entry of judgment on September 10, he
filed a Motion for Relief in which he sought, pursuant to Fed. R. App.
P. 4(a)(6) and Fed. R. Civ. P. 60(b), to reopen the appeal period. The
district court denied the motion, and Vial timely appealed.
The district court did not abuse its discretion in denying the
motion. First, in order to obtain relief under Rule 4(a)(6), a party must
show that he failed to receive adequate notice of the entry of judg-
ment. A party is considered to have notice of all the facts of which
his attorney had notice. See Link v. Wabash R.R. Co., 370 U.S. 626,
634 (1962). Where a party has two counsel of record, notice of the
entry of judgment sent to one attorney sufficiently informs the party
of the entry of judgment. See Alaska Limestone Corp. v. Hodel, 799
F.2d 1409, 1412 (9th Cir. 1986). Here, the district court timely noti-
fied Sparrow of the entry of judgment. Under the case law, Vial can-
not show that he did not receive adequate notice of the entry of
judgment. Thus, he was not entitled to relief under Rule 4(a)(6).
2
To the extent that the Motion for Relief was brought under Fed. R.
Civ. P. 60(b), the district court did not abuse its discretion in denying
the motion. Rule 60(b) motions are not to be used as substitutes for
appeal. See Ackermann v. United States, 340 U.S. 193, 198 (1950).
Further, relief under Rule 60(b) is appropriate only in exceptional cir-
cumstances, see Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993), which do not exist in this case.
We accordingly affirm the judgment of the district court. We dis-
pense 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.
AFFIRMED
3