
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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).                                         -2-            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.               ______    ________                                         -3-                 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.                                                  ________                                         -4-
