CLD-191 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1617
___________
CRAIG SCOTT,
Appellant
v.
WARDEN EBBERT ;
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1:11-cv-00757)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6, on Request for Certificate of Appealability Pursuant to 28 U.S.C. §
2253(c)(2), and for Possible Dismissal due to a Jurisdictional Defect
May 31, 2012
Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 13, 2012)
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OPINION
_________
PER CURIAM
Appellant Craig Scott, proceeding pro se, appeals a February 6, 2012 order of the
United States District Court for the Middle District of Pennsylvania denying his motion
for reconsideration. He has requested that we grant him a certificate of appealability
(COA). For the following reasons, we will summarily affirm the order of the District
Court.
An inmate of the Federal Bureau of Prisons (BOP), Scott is serving a lengthy term
of incarceration stemming from his involvement in several bank robberies. See, e.g.,
United States v. Scott, Nos. 96-4372–73, 1999 U.S. App. LEXIS 32479 (4th Cir. Dec. 13,
1999); United States v. Decator, Nos. 95-5207–08, 1997 U.S. App. LEXIS 34600 (4th
Cir. Dec. 11, 1997). In 2011, he petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2241, “seeking judicial review of BOP’s interpretation of 18 U.S.C. § 3585” in
calculating his sentence. Scott averred that the BOP’s sentence computation was not
“consistent with statute and case law.” The Magistrate Judge recommended denying the
petition, and the Report and Recommendation was adopted by the District Court over
Scott’s objections. See generally Scott v. Holder, No. 1:11-CV-0757, 2011 U.S. Dist.
LEXIS 75488 (M.D. Pa. July 13, 2011).
Scott filed several unsuccessful post-judgment motions, only one of which is
relevant to the present appeal. In January 2012, he moved for “reconsideration under
Rule 60(b),” 1 arguing that the District Court had failed to consider a legal theory
1
Elsewhere, he described the motion as one requesting “amend[ment],” which is relief
available under Rule 59, not Rule 60. See Blystone v. Horn, 664 F.3d 397, 413–15 (3d
Cir. 2011) (discussing, in context of habeas corpus, the distinction between Rules 59 and
60); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (reconfiguring
untimely filed Rule 59 motion as timely filed Rule 60 motion). While we discuss Scott’s
motion in the context of Rule 59, we apply the same standard of review to Rule 60(b)
2
proposed in his original habeas corpus petition. He urged the District Court to
“reconsider its July 13, 2011 decision . . . due to its failure to consider a dispositive fact
and legal precepts presented to it during proceedings.” Scott contended that failure to do
so would allow the BOP to violate his “rights against cruel and unusual punishment,
double jeopardy and due process.” In a February 6, 2012 order, the District Court set out
the lengthy procedural history of the case thus far; finding that Scott had not “convinced
this court to alter the order of July 13 . . . by any of his arguments,” it denied the motion.
Scott appealed.
We have jurisdiction under 28 U.S.C. § 1291, but our review is limited to the
District Court’s February 6 order; Scott’s notice of appeal was not filed within sixty days
of the entry of any other order, see Fed. R. App. P. 4(a)(1)(B), and his January 2012
motion did not toll the time to take an appeal, see Fed. R. App. P. 4(a)(4)(A) (tolling time
to file an appeal for timely filed motions); Lizardo v. United States, 619 F.3d 273, 280 (3d
Cir. 2010). 2 Accordingly, we review the District Court’s order for abuse of discretion.
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).
The District Court correctly denied Scott’s motion. “A proper Rule 59(e) motion .
motions, see Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008), as well as
using the same twenty-eight day standard to determine appellate-tolling timeliness, see
Fed. R. App. P. 4(a)(4)(A)(vi). In other words, our analysis of Scott’s motion would be
exactly the same under either standard.
2
While Scott’s motion was indeed untimely filed, the District Court denied it on the
merits and the Government (understandably) did not object on timeliness grounds. Our
review is therefore also of its merits. See Lizardo, 619 F.3d at 278.
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. . must rely on one of three grounds: (1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct clear error of law or prevent
manifest injustice.” Id. (citations omitted). Scott has not pointed to a “clear error of law”
of the sort that would compel reconsideration; with regard to his 18 U.S.C. § 4001(a)
argument, Scott cites to no law supporting his interpretation of the statute, and fails to
demonstrate that the District Court overlooked a meritorious argument in adjudicating his
habeas petition. Because he has not shown that the District Court’s ruling was “founded
on an error of law or a misapplication of law to the facts,” Doe v. Nat’l Bd. of Med.
Exam’rs, 199 F.3d 146, 154 (3d Cir. 1999), he has failed to make a convincing case that
the District Court abused its discretion.
Thus, because this appeal does not present a substantial question, we will
summarily affirm the District Court’s order. See Murray v. Bledsoe, 650 F.3d 246, 248
(3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Scott’s motion
requesting a certificate of appealability is denied as unnecessary; his motion requesting
remand is denied as well. See United States v. Cepero, 224 F.3d 256, 264–65 (3d Cir.
2000) (en banc) (certificates of appealability not required in appeals of § 2241
proceedings); see also Close v. Thomas, 653 F.3d 970, 974 n.2 (9th Cir. 2011); Curtis v.
Chester, 626 F.3d 540, 543 n.1 (10th Cir. 2010).
4