US v. Charles Pyne, No. 10-7364 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7364 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES PYNE, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:04-cr-00018-AW-3) Submitted: March 25, 2011 Decided: April 15, 2011 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Charles Pyne, Appellant Assistant United States Appellee. Pro Se. Attorney, Barbara Suzanne Skalla, Greenbelt, Maryland, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles order Pyne construing unauthorized motion and his seeks Fed. successive 28 to R. Civ. U.S.C.A. dismissing it unless appealable circuit a on that v. Angelone, A certificate of 369 the P. district 60(b) § 2255 The or court s motion (West basis. justice certificate of appealability. Reid appeal as Supp. order judge an 2010) is issues not a 28 U.S.C. § 2253(c)(1) (2006); F.3d 363, appealability 368-70 will (4th not Cir. issue 2004). absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2006). relief on the demonstrating district debatable merits, that court s or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find constitutional 529 U.S. by that the claims is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that, although the district court may have procedurally erred in recharacterizing Pyne s Rule 60(b)(4) 2 motion as a successive § 2255 motion, application of an alternative procedural ground renders this appeal futile. See Reid, 369 F.3d at 372 n.5. Although Pyne was aware of the alleged error he asserted in his Rule 60(b) motion at the time he appealed the district court s denial of § 2255 relief, he did not raise the issue on appeal. Because a Rule 60(b) motion is not a substitute for an appeal, Pyne cannot assert in a post-judgment motion an issue available to him when he filed his appeal. See Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). addition, Pyne did not file his Rule 60(b) motion In within a reasonable time, as required by Rule 60(c)(1), because he waited three years after the district court denied his § 2255 motion to file it. See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991) (per curiam) (discussing reasonable time requirement). Accordingly, and dismiss the appeal. we deny a certificate of appealability 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. DISMISSED 3
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