                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 2 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 98-6024
                                                     (D.C. No. 97-CV-997)
    LEE ROY WASHINGTON,                                  (W.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Lee Roy Washington appeals from the       district court’s dispositions denying

as untimely his habeas petition filed pursuant to 28 U.S.C. § 2255 and denying his

motion for reconsideration. We previously granted Washington leave to proceed

on appeal in forma pauperis pursuant to 28 U.S.C. § 1915, and a certificate of

appealability as required by 28 U.S.C. § 2253(c)(1)(B). At the court’s direction,

appellee has filed a response brief.

      Washington filed his § 2255 motion on June 20, 1997, three years after his

judgment of conviction, and after April 24, 1997--the crucial one-year cut-off

date for filing § 2255 motions pertaining to convictions which became final prior

to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA).

See Simmons , 111 F.3d at 745-46. The    district court entered an order stating that

the motion would be denied as untimely unless Washington could demonstrate

that he fell within one of the exceptions to § 2255’s one-year filing limitation.

See § 2255 (2)-(4). The court directed Washington to file a brief.

      Washington’s brief argued that 1) application of AEDPA to his conviction

would be impermissibly retroactive; 2) his due process rights were violated

because he had no notice of the one-year limitation on filing; and 3) he timely

filed his § 2255 motion because he originally placed it in the prison mail system

on April 23, 1997. On this last point, Washington asserted that he called the

district court later and learned that it had not received his § 2255 motion, so he


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re-filed it on June 10, 1997. In support of these points, his brief stated that he

attached an affidavit; however, no affidavit appears to have been attached.

Washington did not assert that any of the exceptions to the one-year limitation

applied.

       The district court rejected Washington’s retroactivity argument, and

concluded that he had not demonstrated applicability of any of the § 2255

exceptions. Addressing the contention that he had timely filed his § 2255 motion,

the court noted that no affidavit was attached to Washington’s brief. It

determined that he had not made the requisite showing, and denied the § 2255

motion as untimely filed.

       Washington filed a motion for reconsideration, attaching the affidavit he

says should have been attached to his brief, together with other supporting

documentation. Washington’s affidavit provides more detail, but essentially

mirrors his original contentions that he had placed his original § 2255 motion in

the prison mail on April 23, 1997, but had to re-file in June 1997 because the

court had not received or filed his first motion.    The attachments to the affidavit

include a letter from Washington to the      district court dated May 19, 1997,

inquiring into the status of a § 2255 motion he claims to have mailed “nearly one

month ago.” The letter contains an undated, typed response from the court that no

such motion had been received.       See R. Vol. I, doc. 630, Exhibit E.


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       The district court construed Washington’s motion for reconsideration as a

motion filed pursuant to Fed. R. Civ. P. 60(b), and denied it, concluding that

Washington had satisfied none of the bases for relief under the rule. The court

stated that Washington had not contended that the affidavit was missing from his

earlier brief due to mistake, inadvertence or excusable neglect, and that his earlier

brief “made no reference” to the affidavit.         Id. , doc. 631, at 2. The court also said

that Washington had presented no argument regarding applicability of the

exceptions to the one-year filing limitation found in § 2255, had not asserted that

the information in the affidavit was newly discovered, and had not shown that

justice required relief. Finally, the court stated that “[t]he power granted by Rule

60(b)(6) is not for the purpose of relieving a party like Defendant from

calculated, deliberate choices made or from a pattern of dilatory conduct.”           Id.

       On appeal from the district court’s disposition, Washington asserts that the

court wrongly denied his § 2255 motion as untimely filed. He reiterates the facts

set out in his affidavit in support of his contention that his original motion was

timely filed because he delivered it into the prison mail system on April 23, 1997.

He urges this court to consider that he is pro se and has no control over his filings




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once he delivers them to prison officials. He contends that the interests of justice

compel the court to look at the merits of his claims.    1



       This court usually reviews grants or denials of Rule 60(b) motions only for

abuse of the court’s discretion.    See Stubblefield v. Windsor Capital Group     , 74

F.3d 990, 994 (10th Cir. 1996). Nonetheless, after review of the record on appeal

and the applicable law, we conclude that the       district court’s ruling is based on two

errors which have resulted in an abuse of that discretion.

       First, the district court stated that Washington did not contend that the

omission of his affidavit was due to mistake, inadvertence or excusable neglect.

Although Washington, a pro se litigant, did not use those words, his motion for

reconsideration, when liberally construed, certainly conveys the idea that the

affidavit was meant to be attached to his earlier brief. Further, Washington was

unlikely to address the Rule 60(b) standards expressly because he filed his motion

pursuant to Rule 59. The court construed the motion as under Rule 60(b) only

because it was filed more than ten days after the court’s ruling on October 2.      2




1
        For the first time on appeal, Washington also contends that the time for
filing his § 2255 motion should be tolled until one year from the date he learned
from his attorney that his direct appeal had been decided. We will not consider
this argument, as it was not raised to the district court. See Sac & Fox Nation v.
Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995).
2
        Washington’s motion for reconsideration was dated October 10, but was not
filed in the district court until October 17. No explanation is given for this delay
in filing, and the district court did not address it.

                                             -5-
The district court’s strict adherence to the standards of Rule 60(b) resulted in its

failure to liberally construe Washington’s pleadings.

       Second, the district court’s comment that Washington did not refer to the

affidavit in his earlier brief is wrong. Washington clearly referenced an attached

affidavit concerning the facts surrounding the filing of his § 2255 motion.     See

R. Vol. I, doc. 624, at 7. Although the court’s comment about dilatory conduct

seems to indicate that it disbelieved Washington’s affidavit, it did not directly

address any of Washington’s contentions, relying instead on its conclusion that

Washington had not shown entitlement to consideration of his arguments under

any of the provisions in Rule 60(b).    Cf. Pelican Prod. Corp. v. Marino , 893 F.2d

1143, 1146 (10th Cir. 1990) (noting trial court’s finding of fact that carelessness

could not amount to excusable conduct under Rule 60(b), therefore court did not

abuse its discretion).

       Although a district court has considerable discretion in ruling on a

Rule 60(b) motion, see id. , the court “would necessarily abuse its discretion if it

based its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.”    FDIC v. United Pac. Ins. Co. , 152 F.3d 1266, 1272

(10th Cir. 1998) (quoting   Lyons v. Jefferson Bank & Trust     , 994 F.2d 716, 727

(10th Cir. 1993)) (further quotation omitted). Here, the     district court’s Rule 60(b)




                                            -6-
ruling appears to be premised on its own factual error and on its failure to

liberally construe a pro se litigant’s arguments.

      In response, appellee contends that Washington’s underlying arguments

about the timeliness of his § 2255 motion lack merit. The government presents

evidence and arguments suggesting that Washington cannot prove he deposited

his alleged original § 2255 motion in the prison legal mail system on April 23,

1997, and therefore cannot claim the benefits of the “prisoner mailbox rule.”          See

Houston v. Lack , 487 U.S. 266, 270 (1988);         United States v. Leonard , 937 F.2d

494, 495 (10th Cir. 1991). Because the government did not respond to

Washington’s original brief or his motion for reconsideration, these arguments

and evidence have not been presented to the         district court. Further, although this

court may affirm the district court’s judgment on alternative grounds not relied on

by that court, we may only do so where the litigants have been provided a fair

opportunity to develop the record on point.         See Seibert v. State of Okla., ex rel.

University of Okla. Health Sciences Ctr.      , 867 F.2d 591, 597 (10th Cir. 1989).

Washington has not been given an opportunity to refute or discuss the

government’s new arguments and evidence; we cannot affirm the             district court’s

judgment on this basis.

      We express no opinion about Washington’s arguments regarding the

timeliness of his habeas motion. The       district court did not address the merits of


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Washington’s underlying claims and this court cannot consider them in the first

instance. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric Peterson

Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991). We hold only that, as a result

of its improper denial of Washington’s motion for reconsideration, the court erred

in declining to address the substance of Washington’s arguments regarding the

timeliness of his alleged original § 2255 motion in light of the applicable legal

standards and the facts presented in this case. The judgment of the United States

District Court for the Western District of Oklahoma is REVERSED and this case

is REMANDED for further proceedings consistent with this order and judgment.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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