                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                   January 24, 2007
                             FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                      Clerk of Court



    U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

    v.                                                  No. 05-6103
                                                  (D.C. No. 98-CR-118-T)
    A LO N D O LA RO Y N E G A Y ,                      (W .D. Okla.)

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.


         Defendant-appellant Alondo Laroyne Gay pled guilty to one count of

distributing approximately 245 grams of crack cocaine and was sentenced to

262 months’ in federal prison. In September 2001, approximately two years after

he w as sentenced, M r. Gay filed a 28 U.S.C. § 2255 motion. The district court

denied this motion. On September 20, 2004, M r. Gay filed a motion, ostensibly




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under Federal Rule of Civil Procedure 60(b)(4) and (6), seeking relief from the

denial of his § 2255 motion (September 2004 M otion). 1 This motion was denied

on the ground that it was “not timely under Fed. R. Civ. P. 60(b)(4)” and not filed

within a reasonable time under Rule 60(b)(6). R., Doc. 116. On January 27,

2005, M r. Gay filed a second motion, also ostensibly under Rule 60(b) (January

2005 M otion) asking the district court to reconsider its denial of his September

2004 M otion, because he had not been given the opportunity to file a reply brief. 2

This motion was denied. M r. Gay then filed his notice of appeal on M arch 22,

2005. Although the notice of appeal is less than clear, M r. Gay appears to appeal

the denial of both his September 2004 M otion and his January 2005 M otion.


1
       Rule 60(b)(4) allows for relief from a final judgment, order, or proceeding
of the district court when “the judgment is void.” Rule 60(b)(6) allows for relief
for “any other reason justifying relief from the operation of the judgment.”
2
        Although M r. Gay simply denominated this motion a motion to reconsider,
it is really a second Rule 60(b) motion seeking relief from the denial of his
September 2004 M otion.

      The Federal Rules of Civil Procedure do not recognize a “motion to
      reconsider.” Instead, the rules allow a litigant subject to an adverse
      [order] to file either a motion to alter or amend the [order] pursuant
      to Fed.R.Civ.P. 59(e) or a motion seeking relief from the [order]
      pursuant to Fed.R.Civ.P. 60(b). These two rules are distinct; they
      serve different purposes and produce different consequences. W hich
      rule applies to a motion depends essentially on the time a motion is
      served. If a motion is served within ten days of the rendition of [the
      order], the motion ordinarily will fall under Rule 59(e). If the motion
      is served after that time it falls under Rule 60(b).

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (citation
omitted).

                                         -2-
                                       Analysis

      To the extent M r. Gay appeals the denial of his September 2004 M otion,

the appeal is untimely and is dismissed for lack of jurisdiction. Under Federal

Rule of Appellate Procedure 4(a)(1)(B): “W hen the United States or its officer or

agency is a party, the notice of appeal may be filed by any party within 60 days

after the judgment or order appealed from is entered.” M r. Gay’s notice of appeal

was filed almost five months after the October 27, 2004, order denying the

September 2004 M otion. “This Court can exercise jurisdiction only if a notice of

appeal is timely filed.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239

(10th Cir. 2006).

      To the extent M r. Gay appeals the denial of his January 2005 M otion, his

appeal is moot. In his January 2005 M otion, M r. Gay sought reversal of the

denial of his September 2004 M otion under Rule 60(b) because the district court

denied that motion two days after the government filed its response. M r. Gay

argued that the district court committed procedural error because he was not

allowed time to file a reply to the government’s response before his motion was

ruled upon.

      A plaintiff may appeal the denial of a Rule 60(b) motion seeking relief

from an underlying order or judgment and such an appeal raises for review only

the district court’s order of denial, not the underlying order or judgment itself.

See Van Skiver, 952 F.2d at 1243. A review of the record shows that the

                                          -3-
September 2004 M otion was actually a second or successive § 2255 petition in

that it essentially attempted–through the use of Rule 60(b)–to set aside M r. Gay’s

underlying conviction.

      Under Gonzalez[ v. Crosby, 545 U.S. 524 (2005)], a 60(b) motion is
      a second or successive petition if it in substance or effect asserts or
      reasserts a federal basis for relief from the petitioner’s underlying
      conviction. Conversely, it is a “true” 60(b) motion if it either
      (1) challenges only a procedural ruling of the habeas court which
      precluded a merits determination of the habeas application, or
      (2) challenges a defect in the integrity of the federal habeas
      proceeding, provided that such a challenge does not itself lead
      inextricably to a merits-based attack on the disposition of a prior
      habeas petition.

Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citations omitted).

M r. Gay’s September 2004 M otion argued that because of errors regarding his

sentencing and ineffective assistance of counsel regarding his direct appeal, his

conviction was void. Consequently, the district court did not have jurisdiction to

grant the relief requested in the motion. United States v. Gallegos, 142 F.3d

1211, 1212 (10th Cir. 1998) (per curiam) (holding that the district court lacks

jurisdiction to decide a second or successive § 2255 petition without prior

authorization from this court). This, in turn, affects our jurisdiction here on

mootness grounds.

      “Federal courts lack jurisdiction to decide moot cases because their

constitutional authority extends only to actual cases or controversies. To satisfy

the Article III case or controversy requirement, a litigant must have suffered some



                                          -4-
actual injury that can be redressed by a favorable judicial decision.” Iron Arrow

Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (citation omitted). “It is not

enough that a plaintiff wishes to have the moral satisfaction of a judicial ruling

that he was right and his adversary was wrong; the relief sought must have legal

effect in determining the present and future rights and obligations of the parties”

Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir.

2004); see Air Line Pilots Ass’n v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.

1990) (holding that the test is whether the relief sought would “make a difference

to the legal interests of the parties (as distinct from their psyches, which might

remain deeply engaged with the merits of the litigation)”).

      Here, by appealing from the denial of the January 2005 M otion, M r. Gay is,

in effect, requesting that this court reverse the denial of his January 2005 M otion,

vacate the denial of his September 2004 M otion, and order the district court to

consider a reply brief from him before ruling on the September 2004 M otion.

This court has no power to accommodate that request because the district court

had no jurisdiction to rule on the September 2004 M otion. The district court only

had jurisdiction to transfer the September 2004 M otion to this court, which is not

the relief that M r. Gay sought in his January 2005 M otion. 3

3
      Despite the fact that we have determined that the September 2004 M otion
was a second or successive § 2255 petition, the order denying that motion is
undisturbed because there is no timely appeal from that denial before this court.
The timely appeal from the order denying the January 2005 M otion, “raises for
                                                                     (continued...)

                                          -5-
                                     Conclusion

      To the extent that M r. Gay’s appeal seeks review of the denial of his

September 2004 M otion, his appeal is DISM ISSED for lack of jurisdiction

because it is untimely. To the extent that M r. Gay’s appeal seeks review of the

denial of his January 2005 M otion, his appeal is DISM ISSED for lack of

jurisdiction because it is moot. M r. Gay’s application to proceed in forma

pauperis is G RA N TED .



                                                    Entered for the Court


                                                    M ary Beck Briscoe
                                                    Circuit Judge




3
 (...continued)
review only the district court’s order of denial [of that motion] not the underlying
judgment [denying the September 2004 M otion].” See Van Skiver, 952 F.2d at
1243.

                                         -6-
