United States v. Pitts

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 02-7170

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDGAR NELSON PITTS,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, District Judge.
(CR-94-68, CA-00-848)

Submitted: November 7, 2002 Decided: November 14, 2002

Before WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Edgar Nelson Pitts, Appellant Pro Se. Thomas Jack Bondurant, Jr.,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Edgar Nelson Pitts appeals the district court’s decision

construing his Fed. R. Civ. P. 60(b) motion for reconsideration of

the denial of his 28 U.S.C. § 2255 (2000) motion as a successive

§ 2255 motion and denying it for failure to receive proper

authorization from this court. On appeal, Pitts contends that his

motion should have been construed under Rule 60(b). In his motion,

Pitts alleged that the district court failed to consider the merits

of his claims raised in his original § 2255 motion.

Even assuming Pitts is correct that the district court

misconstrued his motion, we find that his Rule 60(b) motion is

without merit. The district court dismissed his first § 2255 motion

as untimely filed, and we upheld the dismissal on appeal. Pitts’

efforts to revive the merits of his claims in a Rule 60(b) motion

are unavailing, and he offers no argument rebutting the conclusion

that his § 2255 motion was untimely filed. Accordingly, 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 materials before the court and argument

would not aid the decisional process.

DISMISSED

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