United States v. Hayes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-6378

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HARVEY LEE HAYES, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cr-00002-gec)

Submitted: May 30, 2008 Decided: June 27, 2008

Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harvey Lee Hayes, Jr., Appellant Pro Se. Ronald Andrew Bassford,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Harvey Lee Hayes, Jr., appeals the district court’s order

dismissing his “Appeal Pursuant to Rule 60-B(4)”* to declare his

October 2006 criminal judgment void. Hayes filed neither a direct

appeal, nor a 28 U.S.C. § 2255 motion, and his Rule 60(b) motion

specifically asserted that he did not invoke the provisions of 28

U.S.C. § 2255 (2000). Moreover, his Rule 60(b) motion was filed

fourteen months after the district court entered judgment on his

conviction and sentence.

Although “the Federal Rules of Criminal Procedure do not

specifically provide for motions for reconsideration and prescribe

the time in which they must be filed,” Nilson Van & Storage Co. v.

Marsh, 755 F.2d 362, 364 (4th Cir. 1985), a motion for rehearing or

reconsideration in a criminal case extends the time for filing a

notice of appeal if the motion is filed before the order sought to

be reconsidered becomes final. See United States v. Ibarra, 502

U.S. 1, 4 n.2 (1991) (holding would-be appellant who files timely

motion for reconsideration from criminal judgment entitled to full

time period for noticing appeal after motion for reconsideration

*
We assume, as did the district court, that Hayes sought
rehearing or reconsideration of his criminal conviction pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure. Because the
Federal Rules of Civil Procedure are inapplicable to criminal
proceedings, we have evaluated Hayes’ filing by reference to the
applicable authorities governing motions for rehearing or
reconsideration of criminal judgments. For ease of reference,
however, we refer to his “Appeal Pursuant to Rule 60-B(4)” as a
“Rule 60(b)” motion.

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has been decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976)

(same); see also United States v. Christy, 3 F.3d 765, 767 n.1 (4th

Cir. 1993) (same).

Hayes submitted his Rule 60(b) motion well beyond the

applicable period of time provided to notice an appeal of the

judgment he sought the district court to reconsider. Accordingly,

because Hayes’ Rule 60(b) motion was untimely, we affirm the

judgment of the district court dismissing Hayes’ motion. See

United States v. Hayes, No. 7:06-cr-00002-gec (W.D. Va. Jan. 24,

2008). 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

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