Rehearing granted and appeal
dismissed by unpublished opinion
filed 12/4/00
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS R. MORKE,
Plaintiff-Appellant,
v.
No. 00-6206
DAVID A. GARRAGHTY, Warden,
Greensville Correctional Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-99-45-7)
Submitted: June 30, 2000
Decided: July 20, 2000
Before WILKINS and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas R. Morke, Appellant Pro Se. Thomas Drummond Bagwell,
Assistant Attorney General, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thoms R. Morke appeals the district court's order dismissing as
untimely his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 2000), and a subsequent order denying relief on his motion
filed pursuant to Fed. R. Civ. P. 59(e). A motion to alter or amend
judgment under Rule 59(e) shall be filed no later than ten days after
entry of the judgment. See Fed. R. Civ. P. 59(e). Because Morke's
motion was not filed within ten days of the entry of judgment, it must
be considered as a Rule 60(b) motion, rather than a Rule 59(e)
motion. See In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992). A Rule 60(b)
motion does not bring up for review the merits of the underlying sub-
stantive judgment, nor does it toll the period for filing an appeal of
the underlying judgment. See Browder v. Director, Dep't of Correc-
tions, 434 U.S. 257, 263 n.7, 264-65, 268-69 (1978).
Because Morke did not file his Rule 59(e) motion within ten days
of the district court's order dismissing his § 2254 petition, entered on
September 30, 1999, the time period for filing his appeal of that order
was not tolled. See Fed. R. App. P. 4(a)(4). Therefore, Morke's appeal
is only timely as to the district court's denial of his subsequent motion
for reconsideration. This Court reviews a denial of a Rule 60(b)
motion for abuse of discretion. See NOW v. Operation Rescue, 47
F.3d 667, 669 (4th Cir. 1995).
We have reviewed the record and conclude that the district court's
denial of Morke's motion for reconsideration did not constitute an
abuse of discretion. Accordingly, we deny a certificate of appeala-
bility and dismiss the appeal. 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
2