United States of America, Plaintiff-appellee, v. Robert Eugene Bailes, Defendant-appellant, 929 F.2d 694 (4th Cir. 1991)

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U.S. Court of Appeals for the Fourth Circuit - 929 F.2d 694 (4th Cir. 1991) Submitted March 4, 1991. Decided March 21, 1991

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Dennis Raymond Knapp, Senior District Judge. (CR-78-20054; CA-88-1009)

Robert Eugene Bailes, appellant pro se.

Nancy Carper Hill, Assistant United States Attorney, Charleston, W.Va., for appellee.

S.D.W. Va.


Before WIDENER and K.K. HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Robert Eugene Bailes appeals the district court's denial of his Federal Rule of Civil Procedure 60(b) motion to reconsider the dismissal of his motion for post conviction relief brought pursuant to 28 U.S.C. § 2255.*  We affirm.

Motions under Rule 60(b) are directed to the sound discretion of the district court. In reviewing the denial of a motion for reconsideration pursuant to Rule 60(b), this Court's standard of review is whether the district court abused its discretion. Transportation, Inc. v. Mayflower Services, 769 F.2d 952, 954 (4th Cir. 1985) (citing Harman v. Pauley, 678 F.2d 479, 480 (4th Cir. 1982)). Where the Rule 60 motion is little more than a request to the district court to reconsider a legal issue or to change its mind, the rule does not provide a basis for relief. See United States v. Williams, 674 F.2d 310, 313 (4th Cir. 1982).

We conclude that the district court did not abuse its discretion in declining to reconsider, after oral argument by retained counsel, the denial of the Sec. 2255 application. The underlying claims of incompetency based upon elevated blood levels of calcium were, at best, speculative and were insufficient to entitle appellant to relief under Sec. 2255.

Accordingly, we affirm the order below. 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.



Because the motion to reconsider was filed more than ten days after entry of judgment it can only be considered as an untimely Rule 59 motion or as a Rule 60(b) motion, neither of which tolls the time for noting an appeal from the order dismissing the underlying Sec. 2255 action. The notice of appeal, therefore, is timely only from the dismissal of the Rule 60 motion