Curry, Carlos v. United States ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-2302
CARLOS CURRY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1449—Rudy Lozano, Judge.
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SUBMITTED SEPTEMBER 6, 2002—DECIDED OCTOBER 11, 2002
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Before POSNER, COFFEY, and MANION, Circuit Judges.
POSNER, Circuit Judge. In Dunlap v. Litscher, 301 F.3d 873
(7th Cir. 2002), we held that motions to vacate judgments,
filed under Fed. R. Civ. P. 60(b), must, when the movant
is a prisoner seeking to vacate the criminal judgment
against him, submit to the limitations that 28 U.S.C.
§§ 2244(b)(3) and 2255 ¶ 8 place on second or subsequent
federal collateral attacks (habeas corpus, in the case of
state prisoners, and 2255 motions, in the case of federal
prisoners) on criminal judgments. We must now decide,
in considering this appeal from the denial of a Rule 59(e)
motion, whether motions under that rule to alter or amend
2 No. 02-2302
judgments are also affected by the statutory limitations
on successive collateral attacks on criminal judgments.
No published opinion addresses the issue, though sev-
eral assume they are not. See Edwards v. United States,
266 F.3d 756 (7th Cir. 2001); Sawyer v. Hofbauer, 299 F.3d
605 (6th Cir. 2002); Dowthitt v. Johnson, 230 F.3d 733 (5th Cir.
2000); Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000).
The assumption is correct. A Rule 60(b) motion is a collat-
eral attack on a judgment, which is to say an effort to set
aside a judgment that has become final through exhaus-
tion of judicial remedies. A Rule 59(e) motion is not; filed
as it must be within 10 days of the judgment, it suspends
the time for appealing. Since such a motion does not
seek collateral relief, it is not subject to the statutory lim-
itations on such relief.
That does not help the appellant in this case. Although
a motion filed within 10 days after the judgment is, regard-
less of the label, to be treated as a Rule 59(e) motion, e.g.,
Charles v. Daley, 799 F.3d 343, 347 (7th Cir. 1987); Romo
v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n. 3 (7th
Cir. 2001); Jones v. Unum Ins. Co., 223 F.3d 130, 136-37 (2d
Cir. 2000), this is only, as the cases say, if it is a “substan-
tive” motion, that is, only if it comes within the scope
of Rule 59(e). A motion for an extension of time, for
example, does not. It is not a Rule 59(e) motion, even
when filed within 10 days, because it does not seek to
alter or amend (in other words, to reconsider and revise)
the judgment. Lorenzen v. Employees Retirement Plan, 896
F.2d 229, 231 (7th Cir. 1990); Taumby v. United States, 919
F.2d 69, 71 n. 3 (8th Cir. 1990); cf. Buchanan v. Stanships,
Inc., 485 U.S. 265 (1988) (per curiam); Utah Women’s Clinic,
Inc. v. Leavitt, 75 F.3d 564, 567 (10th Cir. 1996). In this
case the appellant, who filed the purported Rule 59(e)
motion within 10 days after the denial of his second sec-
No. 02-2302 3
tion 2255 motion, was in fact attacking the denial of his
first such motion, so that his motion was actually one under
Rule 60(b), since it was filed long after the tenth day
following that first denial. The 10-day limit precludes suc-
cessive Rule 59(e) motions—the second is bound to be filed
after the tenth day—and that is what we have here.
The motion did not fall within the area demarcated in
Dunlap in which a Rule 60(b) motion is consistent with
the limitations that Congress has placed on collateral at-
tacks on criminal judgments. Therefore the judge, rather
than denying the motion as he did (without explanation),
should have dismissed the motion for want of jurisdic-
tion, since the movant had not obtained our permission
to mount a second collateral attack. Nunez v. United States,
96 F.3d 990, 991 (7th Cir. 1996).
The judgment is vacated and the case remanded with
instructions to dismiss the motion for want of jurisdiction.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-11-02