Sammee Dale Garvin, Petitioner-appellant, v. David A. Garraghty, Warden; Commonwealth of Virginia,respondents-appellees, 861 F.2d 264 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 861 F.2d 264 (4th Cir. 1988) Submitted: Sept. 19, 1988. Decided: Oct. 21, 1988

Sammee Dale Garvin, appellant pro se.

Richard Bain Smith (Office of the Attorney General of Virginia), for appellees.

Before MURNAGHAN and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Sammee Dale Garvin seeks to appeal the district court's order denying his post-judgment motion filed in this action brought under 28 U.S.C. § 2254. Because Garvin's post-judgment motion was served more than ten days after entry of judgment, it did not toll the period to appeal the underlying judgment, and the appeal is untimely as to that judgment. See Fed. R. App. P. 4(a) (4); Browder v. Director, Dep't of Corrections, 434 U.S. 257 (1978). We therefore have jurisdiction to review only the district court's denial of Garvin's post-judgment motion; we find no abuse of discretion in the denial of that motion. See Fed. R. Civ. P. 60(b). Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Garvin v. Garraghty, C/A No. 87-648-AM (E.D. Va. Apr. 21, 1988). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.