William Albert Reinke, Petitioner-appellant, v. United States of America, Respondent-appellee, 52 F.3d 334 (9th Cir. 1995)

MEMORANDUM^** 

William Albert Reinke, a federal prisoner, appeals pro se the district court's denial of his motion to reconsider the denial of his 28 U.S.C. § 2255 motion. Reinke contends the district court erred when it denied his section 2255 motion as successive. We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

On April 28, 1994, the district court order denying Reinke's section 2255 motion was entered. On May 18, 1994, Reinke signed a motion for reconsideration which was filed in the district court on June 7, 1994. By order of August 2, 1994, entered on August 4, 1994, the district court denied Reinke's motion for reconsideration. Reinke filed a notice of appeal on August 10, 1994. Because Reinke failed to file his motion for reconsideration within ten days after the April 28, 1994 entry of judgment, we lack jurisdiction to review anything other than the district court's denial of the motion for reconsideration. See Fed. R. App. P. 4(a) (4) (reconsideration motion served within ten days after entry of judgment tolls time for appeal). Consequently, our review is limited to determining whether the district court abused its discretion when it denied Reinke's motion for reconsideration. See Cel-a-Pak v. California Agr. Labor Relations Bd., 680 F.2d 664, 668 (9th Cir.), cert. denied, 459 U.S. 1071 (1982).

The district court did not abuse its discretion when it found no basis to reconsider its April 28, 1994 order. This is Reinke's seventh section 2255 motion. The claims he raises have previously been decided on their merits and are therefore successive.¹  See Sanders v. United States, 373 U.S. 1, 15 (1963); see also Campbell v. Wood, 18 F.3d 662, 675 (9th Cir. 1994) (petitioner cannot create a different ground merely by couching his argument in different language); Molina v. Rison, 886 F.2d 1124, 1127-29 (9th Cir. 1989) (a ground is successive if the gravamen of the legal claim was adjudicated on its merits in a prior proceeding). Even were we to accept that any claim which Reinke now raises is so different from his previously raised claims as to be new, any such claim would be barred under the abuse of the writ doctrine. See Rule 9(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255; cf. McCleskey v. Zant, 499 U.S. 467 (1991).

AFFIRMED.