                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 09-14920                    MAY 20, 2011
                           Non-Argument Calendar                JOHN LEY
                         ________________________                CLERK

                     D. C. Docket No. 99-00018-CR-3-RV

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                    versus

MICHAEL CRAIG PUGH,
a.k.a. Crucito Solano Serrano,
a.k.a. Michael Craig Munjakaze Kiserian,

                                                          Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (May 20, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
       Michael Craig Pugh, a pro se federal prisoner, appeals the district court’s

denial of his motion to reconsider his motion for new DNA testing pursuant to 18

U.S.C. § 3600. Pugh argues that the Government did not meet its burden under 18

U.S.C. § 3600(a)(4) to show that the evidence he sought to have tested was

destroyed.1

       We review both criminal and civil motions to reconsider under an abuse of

discretion standard. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004)

(criminal); Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir.

2004) (civil). The interpretation of a statute is a question of law which we review

de novo, and the district court’s factual findings are reviewed for clear error. See,

e.g., United States v. Simmons, 368 F.3d 1335, 1338 (11th Cir. 2004) (interpreting

the Sentencing Reform Act of 1984).




       1
                We reject the Government’s argument that Pugh’s appeal was untimely. In a civil
case where the United States is a party, the notice of appeal must be filed within 60 days of the
date the order appealed from is entered on the docket. Fed.R.App.P. 4(a)(1)(B). Post-conviction
proceedings are considered “civil in nature,” and, therefore, they are subject to this 60-day
appeals period rather than the 14-day period of Federal Rule of Appellate Procedure
4(b)(1)(A)(i). See Barbour v. Haley, 471 F.3d 1222, 1231 (11th Cir. 2006). Further, a notice of
appeal filed by a pro se prisoner is deemed filed on the date the prisoner delivers it to prison
authorities or places it in the prison mail system. See Fed.R.App.P. 4(c)(1); Houston v. Lack,
487 U.S. 266, 275-76, 108 S. Ct. 2379 (1988). Absent contrary evidence, we will assume that a
prisoner’s filing “was delivered to prison authorities the day he signed it.” Washington v. United
States, 243 F.3d 1299, 1301 (11th Cir. 2001). Pugh delivered his notice of appeal to prison
authorities 26 days after the district court’s opinion was issued, falling safely within the 60 days.

                                                  2
      Under 18 U.S.C. § 3600, “an individual under a sentence of imprisonment”

may file a written motion for the DNA testing of specific evidence. 18 U.S.C.

§ 3600(a). The district court may order this testing if it finds that ten conditions

apply. Id. The only condition at issue in this case is § 3600(a)(4), which states:,

      The specific evidence to be tested is in the possession of the
      [g]overnment and has been subject to a chain of custody and retained
      under conditions sufficient to ensure that such evidence has not been
      substituted, contaminated, tampered with, replaced, or altered in any
      respect material to the proposed DNA testing.

§ 3600(a)(4).

      Federal Rule of Appellate Procedure 10(e)(2)(B) provides that, “If anything

material to either party is omitted from or misstated in the record by error or

accident, the omission or misstatement may be corrected and a supplemental

record may be certified and forwarded . . . by the district court before or after the

record has been forwarded.” We can affirm a summary judgment on grounds other

than those relied upon by the district court. Edwards v. Niagara Credit Solutions,

Inc., 584 F.3d 1350, 1354 (11th Cir. 2009).

      Here, the district court clearly erred in adopting the magistrate judge’s

factual finding that the government showed that the evidence Pugh sought to have

tested was destroyed. The Government offered no evidence before the district

court in support of this assertion. However, since that time, the Government has

                                           3
moved to supplement the record on appeal and submitted the evidence log of the

Escambia County Sheriff’s Office. The district court granted the Government’s

motion and we note that the record log shows that items 7 and 8, hand made

masks, have been destroyed. To the extent that Pugh argues the Government

violated the strictures of § 3600 when it destroyed the evidence, we reject that

argument because the Sheriff’s Office destroyed the evidence before § 3600

became law and thus it was not bound by any of § 3600’s preservation mandates.2

Because there is no evidence to submit to testing, we affirm the district court’s

decision.

AFFIRMED.




       2
              Section 3600 was enacted on October 30, 2004, while the evidence was destroyed
on June 21, 2004.

                                             4
