USA v. Abel Rivas, No. 09-15525 (11th Cir. 2010)

Annotate this Case

Download PDF

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 09-15525 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 8, 2010 JOHN LEY CLERK D. C. Docket No. 07-60219-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ABEL RIVAS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 8, 2010) Before BARKETT, HULL and MARCUS, Circuit Judges. PER CURIAM: Abel Rivas appeals pro se the district court s denial of his Fed.R.Civ.P. 60(b) motion. Rivas argues that the district court abused its discretion in denying his Rule 60(b) motion based on his argument that after he pled guilty to the offense of conviction, he requested that his counsel file an appeal, and counsel promised to do so, but no notice of appeal was ever filed. After careful review, we affirm. We review a district court s denial of a Rule 60(b) motion for abuse of discretion. Crapp v. City of Miami Beach, 242 F.3d 1017, 1019 (11th Cir 2001). The Federal Rules of Civil Procedure govern the procedure in all civil actions and proceedings in the United States district courts. Fed.R.Civ.P. 1. Rule 60(b) provides that the court may relieve a party . . . from a final judgment, order, or proceeding under certain circumstances. Fed. R. Civ. P. 60(b). However, Rule 60(b) does not provide for relief from a criminal order in a criminal proceeding. See United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998). Here, the district court initially construed Rivas s motion as one requesting leave to file an out-of-time appeal. Rivas, in a motion to reconsider, expressly informed the district court that he was seeking relief under Rule 60(b). That civil rule is unavailable to offer relief from the judgment in his criminal case. See id. Because Rivas insists on appeal that he intended to rely on Rule 60(b) and not 28 U.S.C. § 2255, the district court did not err in failing to recharacterize his pleadings, and properly denied him relief. AFFIRMED. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.