Watson v. Smith ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6677
ROBERT EUGENE WATSON,
Petitioner - Appellant,
versus
SEWALL B. SMITH, Warden; ATTORNEY GENERAL OF
THE STATE OF MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-97-
1163-AMD)
Submitted: August 13, 1998 Decided: September 3, 1998
Before WIDENER and WILKINS, Circuit Judges, and HALL, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Mark Lawrence Gitomer, CARDIN & GITOMER, P.A., Baltimore, Maryland,
for Appellant. John Joseph Curran, Jr., Attorney General, Rachel
Marblestone Kamins, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court’s order denying his
motion for reconsideration. Appellant filed a petition under 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). The petition was denied
on March 6, 1998. On March 13, 1998, Appellant, through counsel,
sought leave to file a response and a motion for reconsideration.
On the same day, the court directed Appellant to file the motion
for reconsideration forthwith. Appellant filed a motion for recon-
sideration on April 20, 1998 challenging the legal issues decided
by the district court. The motion was denied on April 23, 1998.
Appellant filed a notice of appeal from the April 23 order on May
4, 1998.
The time periods for filing notices of appeal are governed by
Fed. R. App. P. 4. These periods are “mandatory and jurisdiction-
al.” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264
(1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)). A notice of appeal must be filed within thirty days of the
date of the entry of the final order. See Fed. R. App. P. 4(a)(1).
A motion filed within ten days of the entry of the final order
under Fed. R. Civ. P. 59 or 60 tolls the time for filing a notice
of appeal. The ten day period cannot be extended at the discretion
of the district court. See Fed. R. Civ. P. 6(b); Smith v. Evans,
853 F.2d 155, 157 (3d Cir. 1988). Therefore, Appellant’s motion for
reconsideration did not toll the period in which to file a notice
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of appeal from the court’s March 6 order. The notice of appeal is
timely only as to the court’s April 23 order disposing of his
motion for reconsideration.
Appellant’s motion for reconsideration is construed as having
been filed under Fed. R. Civ. P. 60(b). See Dove v. Codesco, 569
F.2d 807, 809 (4th Cir. 1978). We review the denial of a motion
under Rule 60(b) for abuse of discretion. Because Appellant’s mo-
tion only sought reconsideration of legal issues addressed in the
March 6 order, it was not a proper basis for granting reconsidera-
tion. See CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d
395, 401 (4th Cir. 1995). Accordingly, we find the court did not
abuse its discretion. We deny a certificate of appealability and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
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