UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES PYNE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:04-cr-00018-AW-3)
Submitted: March 25, 2011 Decided: April 15, 2011
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles Pyne, Appellant Pro Se. Barbara Suzanne Skalla,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Pyne seeks to appeal the district court’s
order construing his Fed. R. Civ. P. 60(b) motion as an
unauthorized successive 28 U.S.C.A. § 2255 (West Supp. 2010)
motion and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Reid v. Angelone, 369 F.3d 363, 368-70 (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) (2006). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable and that the motion states a debatable claim
of the denial of a constitutional right. Slack, 529 U.S. at
484-85.
We have independently reviewed the record and conclude
that, although the district court may have procedurally erred in
recharacterizing Pyne’s Rule 60(b)(4) motion as a successive
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§ 2255 motion, application of an alternative procedural ground
renders this appeal futile. See Reid, 369 F.3d at 372 n.5.
Although Pyne was aware of the alleged error he asserted in his
Rule 60(b) motion at the time he appealed the district court’s
denial of § 2255 relief, he did not raise the issue on appeal.
Because a Rule 60(b) motion is not a substitute for an appeal,
Pyne cannot assert in a post-judgment motion an issue available
to him when he filed his appeal. See Dowell v. State Farm Fire
& Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). In
addition, Pyne did not file his Rule 60(b) motion within a
reasonable time, as required by Rule 60(c)(1), because he waited
three years after the district court denied his § 2255 motion to
file it. See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d
535, 538 (4th Cir. 1991) (per curiam) (discussing reasonable
time requirement).
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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