UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY HINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-00-180)
Submitted: January 14, 2005 Decided: January 31, 2005
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Gregory Hinton, Appellant Pro Se. Kathleen M. Kahoe, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Hinton, a federal inmate, appeals the district
court’s denials of his Fed. R. Civ. P. 60(b) motion, his motion for
reconsideration, his motion for certificate of appealability, his
motion to reopen time to appeal, his motion for clarification, and
his motion to proceed in forma pauperis. After a thorough review
of the record, we affirm in part, deny a certificate of
appealability and dismiss in part, and grant leave to proceed in
forma pauperis on appeal.
In 2000, Hinton was convicted of bank robbery and use of
a firearm in the commission of a violent felony. He was sentenced
to consecutive terms of life and eighty-four months in prison. His
convictions and sentences were affirmed on appeal. In April 2003,
Hinton filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 (2000), which was denied for failing
to raise any constitutional violations. This court denied a
certificate of appealability and dismissed the appeal of that
order. Hinton then filed a Fed. R. Civ. P. 60(b) motion in which
he argued that the district court improperly denied his certificate
of appealability while simultaneously dismissing his § 2255 appeal.
He further argued that his trial counsel was ineffective. The
district court denied Hinton’s motion, holding that it was proper
for his certificate of appealability and § 2255 appeal to be
addressed simultaneously. The court also dismissed Hinton’s
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ineffective assistance claim, finding it was in effect a successive
§ 2255 application and thus the court was without jurisdiction to
consider it. The court’s order was entered on June 21, 2004.
Hinton next filed a motion seeking to reopen the time to
appeal, arguing that he received notice of the court’s order too
late to file motions pursuant to Fed. R. Civ. P. 52(b) and 59(e),
both of which have ten-day limitations periods. Without waiting
for the court to rule on his motion, Hinton filed a motion for
reconsideration, which he described as arising pursuant to Rules
52(b) and 59(e). The motion for reconsideration was summarily
denied without comment by order entered on August 23, 2004, while
the motion to reopen time to appeal was denied on September 15,
2004. Hinton next filed a motion for clarification in which he
sought to ascertain whether the district court had, in fact,
considered his 52(b) and 59(e) motion timely. This motion was also
denied. Finally, the district court denied Hinton’s motions for a
certificate of appealability and to proceed in forma pauperis by
order entered on September 30, 2004.
Hinton filed his first notice of appeal on September 2,
2004, in which he appealed the district court’s denial of his Rule
60(b) motion and his motion for reconsideration. Hinton later
filed an informal brief in this Court in which he sought to appeal
the district court’s denial of his motion to reopen time to appeal,
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his motion for clarification, his motion for certificate of
appealability, and his motion to proceed in forma pauperis.
Under Fed. R. App. P. 4(a)(1)(B), when the United States
is a party, a notice of appeal must be filed within sixty days
after the judgment or order appealed from is entered. Judgment was
entered on Hinton’s Rule 60(b) motion on June 21, 2004, giving him
until August 21, 2004 to appeal. Hinton did not file his notice of
appeal until September 2, 2004. Accordingly, we dismiss Hinton’s
appeal of the district court’s denial of his 60(b) motion as
untimely.
As to his appeal of the denial of his motion for
reconsideration, Hinton must meet the requirements for the issuance
of a certificate of appealability before this Court may review the
district court’s order denying reconsideration. See Reid v.
Angelone, 369 F.3d 363, 367-70 (4th Cir. 2004). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that his constitutional claims are debatable and
that any dispositive procedural rulings were also either debatable
or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Hinton has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss as to this aspect of
Hinton’s appeal.
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Hinton filed his motion to reopen time to appeal pursuant
to Fed. R. App. P. 4(a)(6). Under this rule, the district court
may reopen the time to file an appeal for a period of fourteen days
if three conditions are met: (1) the motion is filed within 180
days after the judgment is entered or within seven days after the
moving party receives notice of the entry; (2) the court finds that
the moving party was entitled to a notice of the entry of the
judgment sought to be appealed, but did not receive it within
twenty-one days of entry; and (3) the court finds that no party
would be prejudiced. See Fed. R. App. P. 4(a)(6). By his own
admission, Hinton received notice of the court’s entry of judgment
on June 29, 2004, eight days after the judgment was entered. Thus,
Hinton cannot satisfy the second requirement of Rule 4(a)(6).
Accordingly, we affirm the district court’s denial of Hinton’s
motion to reopen time to appeal.
Hinton’s motion for clarification requests an explanation
for what Hinton believes to be the court’s apparent denial of his
motion for reconsideration on the merits, while denying his motion
for time to reopen appeal. Hinton requests a statement from the
court as to whether it deemed his motion for reconsideration
timely. There is no procedural vehicle to obtain clarification of
the district court’s order. We dismiss this aspect of the appeal
as frivolous.
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In summary, we: (1) dismiss Hinton’s appeal of the
district court’s denial of his Rule 60(b) motion as untimely;
(2) deny a certificate of appealability and dismiss Hinton’s appeal
of the district court’s denial of his motion for reconsideration;
(3) affirm the district court’s denial of Hinton’s motion to reopen
time to appeal; (4) dismiss Hinton’s appeal of the district court’s
denial of his motion for clarification; and (5) grant leave to
proceed in forma pauperis on 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.
AFFIRMED IN PART;
DISMISSED IN PART
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