Charles Edward Smith, Petitioner-appellant, v. D.a. Garraghty, Warden, Attorney General of the Commonwealthof Virginia, Respondents-appellees, 911 F.2d 724 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 911 F.2d 724 (4th Cir. 1990) Submitted July 9, 1990. Decided July 23, 1990

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (C/A No. 88-350-R)

Charles Edward Smith, appellant pro se.

Hazel Elizabeth Shaffer, Assistant Attorney General, Richmond, Va., for appellees.

E.D. Va.

AFFIRMED.

Before SPROUSE and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Charles Edward Smith appeals from the district court's order denying relief under 42 U.S.C. § 1983.1  Our review of the record and the district court's opinion discloses that this appeal is without merit.2  Accordingly, we affirm on the reasoning of the district court. Smith v. Garraghty, C/A No. 88-350-R (E.D. Va. Mar. 1, 1990). 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.

 1

Although this case was initially filed as a habeas corpus petition under 28 U.S.C. § 2254, this Court has construed the petition as a 42 U.S.C. § 1983 complaint

 2

We find that Smith's notice of appeal of the March 1, 1990, order denying his motion to amend judgment was timely under Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-428). However, because his motion to amend judgment was served more than ten days after the judgment entered on December 19, 1989, it must be treated as a Fed. R. Civ. P. 60(b) motion, and its service did not toll the time for appeal from the December 19, 1989, judgment. Therefore, only the denial of Smith's Rule 60(b) motion is before us on appeal

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