[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1154
RONALD E. TILLEY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Selya and Cyr,
Circuit Judges.
Ronald E. Tilley on brief pro se.
Jay P. McCloskey, United States Attorney, James L. McCarthy,
Assistant United States Attorney, and Margaret D. McGaughey, Assistant
United States Attorney, on brief for appellee.
July 22, 1994
Per Curiam. Ronald E. Tilley, a pro se federal
prisoner, appeals the district court's denial of his Fed. R.
Civ. P. 60(b)(6) motion for relief from the district court
order dismissing his 28 U.S.C. 2255 motion to vacate, set
aside, or correct his sentence.1 We review denials of Rule
60(b) motions for abuse of discretion. See Rodriguez-Antuna
v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).
We affirm the district court order.
"It is settled law in this circuit that a motion which
asks the court to modify its earlier disposition of a case
solely because of an ostensibly erroneous legal result is
brought under Fed. R. Civ. P. 59(e). Such a motion, without
more, does not invoke Fed. R. Civ. P. 60(b). . . . Absent
fraud, newly-discovered evidence, a party's pardonable
omission, or the like -- none of which were meaningfully
alleged -- [such a] motion must be measured by the Rule 59
yardstick." Rodriguez-Antuna 871 F.2d at 2 (citations
omitted). Tilley alleges no grounds which would entitle him
to relief under Rule 60(b). His sole basis for relief is
that the district court erred, as a matter of law, in
refusing to give retroactive effect to a 1992 amendment to
U.S.S.G. 4A1.3, p.s. Consequently, the motion should be
viewed as a Rule 59(e) motion to alter or amend the judgment.
1. The Federal Rules of Civil Procedure apply to 2255
proceedings. Barrett v. United States, 965 F.2d 1184, 1187
n.4 (1st Cir. 1992).
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See Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26
(1st Cir. 1988) ("'nomenclature should not be exalted over
substance.'") (quoting Lyell Theatre Corp. v. Loews Corp.,
682 F.2d 37, 41 (2d Cir. 1982)).
Viewed under Rule 59(e), Tilley's motion must be
dismissed as untimely filed. Rule 59(e) requires a motion to
alter or amend a judgment to be "served not later than 10
days after the entry of the judgment." The district court
judgment denying Tilley's 2255 motion was entered on
December 22, 1993. There is no indication in the record that
the so-called Rule 60(b) motion was ever served. Moreover,
it was not filed with the court until January 18, 1994, more
than 10 days, after entry of the judgment. The district
court therefore appropriately denied the motion. See Vargas
v. Gonzalez, 975 F.2d 916, 918 (1st Cir. 1992) (holding that
district court lacked jurisdiction to grant untimely motion
that sought relief that could only be properly sought under
Rule 59(e)); Barrett v. United States, 965 F.2d 1184, 1187
(1st Cir. 1992) (affirming dismissal of motions for
reconsideration of dismissal of 2255 petition on ground
that motions, viewed as Rule 59(e) motions, were untimely).
Since the Rule 59(e) motion was untimely filed, it did not
toll the time for filing a notice of appeal from the
underlying order dismissing Tilley's 2255 motion. See
Vargaz v. Gonzalez, 975 F.2d at 918.
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Finally, given that the district court was under no
obligation to alter or amend the judgment, its denial of the
motion to reconsider did not constitute an abuse of
discretion. The district court order dismissing the motion
for relief from judgment is therefore affirmed.
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