United States v. Hayes , 282 F. App'x 281 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6378
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY LEE HAYES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cr-00002-gec)
Submitted: May 30, 2008 Decided: June 27, 2008
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harvey Lee Hayes, Jr., Appellant Pro Se. Ronald Andrew Bassford,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harvey Lee Hayes, Jr., appeals the district court’s order
dismissing his “Appeal Pursuant to Rule 60-B(4)”* to declare his
October 2006 criminal judgment void. Hayes filed neither a direct
appeal, nor a 28 U.S.C. § 2255 motion, and his Rule 60(b) motion
specifically asserted that he did not invoke the provisions of 28
U.S.C. § 2255 (2000). Moreover, his Rule 60(b) motion was filed
fourteen months after the district court entered judgment on his
conviction and sentence.
Although “the Federal Rules of Criminal Procedure do not
specifically provide for motions for reconsideration and prescribe
the time in which they must be filed,” Nilson Van & Storage Co. v.
Marsh, 755 F.2d 362, 364 (4th Cir. 1985), a motion for rehearing or
reconsideration in a criminal case extends the time for filing a
notice of appeal if the motion is filed before the order sought to
be reconsidered becomes final. See United States v. Ibarra, 502
U.S. 1, 4 n.2 (1991) (holding would-be appellant who files timely
motion for reconsideration from criminal judgment entitled to full
time period for noticing appeal after motion for reconsideration
*
We assume, as did the district court, that Hayes sought
rehearing or reconsideration of his criminal conviction pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure. Because the
Federal Rules of Civil Procedure are inapplicable to criminal
proceedings, we have evaluated Hayes’ filing by reference to the
applicable authorities governing motions for rehearing or
reconsideration of criminal judgments. For ease of reference,
however, we refer to his “Appeal Pursuant to Rule 60-B(4)” as a
“Rule 60(b)” motion.
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has been decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976)
(same); see also United States v. Christy, 3 F.3d 765, 767 n.1 (4th
Cir. 1993) (same).
Hayes submitted his Rule 60(b) motion well beyond the
applicable period of time provided to notice an appeal of the
judgment he sought the district court to reconsider. Accordingly,
because Hayes’ Rule 60(b) motion was untimely, we affirm the
judgment of the district court dismissing Hayes’ motion. See
United States v. Hayes, No. 7:06-cr-00002-gec (W.D. Va. Jan. 24,
2008). 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.
AFFIRMED
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