United States v. Scott ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50115
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYLVIA MARIE SCOTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-92-CR-36-ALL-SS
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October 19, 1999
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Sylvia Marie Scott appeals the district court’s denial of a
motion filed pursuant to Fed. R. Civ. P. 60(b) that attacked her
1992 sentence for possessing cocaine base with intent to
distribute and using or carrying a firearm during a drug-
trafficking crime. Scott’s motion, which indicated that it was
“not to be misconstrued as a motion filed under 28 U.S.C.
§ 2255,” argued that evidence against her had been obtained in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-50115
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violation of the Fourth Amendment. The district court denied the
motion, holding that it was “an inappropriate use” of Rule 60.
At the court’s request, the parties briefed whether Scott’s
notice of appeal was timely. Both Scott and the Government argue
that Scott’s appeal was governed by Fed. R. App. P. 4(a)(1)(B),
which provides 60 days in which to appeal in civil cases
involving the United States. We agree. Cf. Rule 11, Rules
Governing § 2255 Proceedings; United States v. Miramontez, 995
F.2d 56, 58 (5th Cir. 1993) (holding that a federal convict’s
petition for grand jury transcripts, coming long after his
conviction, was civil); United States v. Cooper, 876 F.2d 1192,
1194 (5th Cir. 1989) (holding that a petition for a writ of error
coram nobis was subject to the 60-day period). Under Rule
4(a)(1)(B), Scott’s notice of appeal was timely.
We review the district court’s denial of a Rule 60(b) motion
for abuse of discretion. Halicki v. Louisiana Casino Cruises,
Inc., 151 F.3d 465, 470 (5th Cir. 1998), cert. denied, 119 S. Ct.
1143 (1999). Scott seeks to challenge her criminal conviction
via a freestanding Rule 60(b) motion. Rule 60(b) is a rule of
civil procedure designed to facilitate challenges to errors in
civil judgments. The rule has no application to criminal
convictions. See United States v. Breit, 754 F.2d 526, 530 (4th
Cir. 1985) (noting that “there is no provision similar to
[Rule] 60(b) for relief after final judgment or order in effect
for federal criminal cases”).
Scott argues that some courts have upheld the use of
Rule 60(b) motions to attack criminal convictions. The cited
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cases, such as United States v. Jerry, 487 F.2d 600 (3d Cir.
1973), do not recognize this type of use of Rule 60. Instead,
most stand for the proposition “that interlocutory orders of
district courts remain subject to vacation or modification until
judgment is entered upon them.” Breit, 754 F.2d at 530 (emphasis
added). Because Scott’s conviction has long been final, these
cases offer her no support. Scott’s citation of United States v.
Clark, 984 F.2d 31, 34 (2d Cir. 1993), is also of no aid to her;
Clark did not involve a freestanding Rule 60(b) motion but a
Rule 60(b) motion that asked a district court to reconsider its
recent denial of a § 2255 motion.
Scott’s Rule 60(b) motion was an obvious attempt to
circumvent the prohibition within the Antiterrorism and Effective
Death Penalty Act (AEDPA) against filing successive § 2255
motions. “‘Rule 60(b) cannot be used to circumvent restraints on
successive [motions]. This was true before [AEDPA] was enacted,
and it is equally true, if not more so, under the new act.’”
United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1156 (1999) (citation omitted). The district
court committed no abuse of discretion when it concluded that
Scott’s motion was “an inappropriate use” of Rule 60(b).
AFFIRMED.