                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0661n.06
                           Filed: September 5, 2007

                                            No. 06-5276

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

BRYANT A. COOK,                                          )
                                                         )   ON APPEAL FROM THE
       Petitioner-Appellant,                             )   UNITED STATES DISTRICT
                                                         )   COURT FOR THE EASTERN
v.                                                       )   DISTRICT OF TENNESSEE
                                                         )
UNITED STATES OF AMERICA,                                )
                                                         )
       Respondent-Appellee.                              )
                                                         )


BEFORE:        KEITH, MOORE, and COLE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Petitioner-Appellant Bryant A. Cook (“Cook”) was

convicted after a jury trial for conspiracy to possess with the intent to distribute crack cocaine.

Another panel of this Court affirmed his conviction on direct appeal. Cook subsequently filed a

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The district court denied his motion.

Cook then filed a motion to reconsider, which was also denied by the district court. Thereafter, Cook

filed a motion to alter and amend the district court’s denial of his motion to reconsider. The district

court again denied Cook’s motion. Cook now appeals the district court’s denial of his motion to

alter and amend. For the reasons that follow, we AFFIRM.

                                                 I.

       This case presents a procedural puzzle. On March 4, 1997, Cook was tried and convicted

of conspiracy to possess with the intent to distribute crack cocaine. Cook appealed, and on May 25,
No. 06-5276
Cook v. United States
Page 2

1999, this Court affirmed his conviction. On October 11, 2000, Cook, pursuant to 28 U.S.C. § 2255,

filed a pro se motion to vacate his sentence in the Eastern District of Tennessee. On August 5, 2005,

the district court issued an order dismissing Cook’s § 2255 motion in full.1 On August 8, 2005, the

order was entered.

       After the denial of his § 2255 motion, Cook filed a series of motions and appeals. On August

25, 2005, Cook filed a motion to reconsider. On November 4, 2005, while his motion to reconsider

was pending before the district court, Cook filed a motion to extend the time to file a notice of appeal

from the district court’s order dismissing his § 2255 petition. On the same day, Cook also filed a

notice of appeal to this Court, challenging the district court’s order dismissing his § 2255 petition.

On November 16, 2005, Cook filed an identical notice of appeal—again challenging the district

court’s dismissal of his § 2255 motion. This Court docketed his identical notices of appeal (the §

2255 appeal) as Case No. 05-6773.

       On February 6, 2006, the district court issued an order denying Cook’s later motions—his

motion to reconsider and his motion to extend the time to file a notice of appeal. First, the district

court concluded that because Cook did not file his motion to reconsider within ten days of the entry

of judgment, it would not construe Cook’s motion to reconsider under Rule 59(e), but instead under



        1
         Initially, the district court denied Cook’s petition on all grounds, with the exception of
his claim that, in light of United States v. Dale, 178 F.3d 429 (6th Cir. 1999), the district court
“committed plain error when it sentenced him to life imprisonment under 21 U.S.C. §
841(b)(1)(A) for cocaine base (“crack”) based upon a general jury verdict” and not a special
instruction requiring the jury to find unanimously whether Cook conspired to distribute
marijuana and/or crack cocaine. (J.A. at 68-69.) The Government filed a motion to reconsider.
After some consideration, the district court granted the Government’s motion to reconsider,
vacated its earlier decision, and dismissed Cook’s § 2255 petition on all grounds.
No. 06-5276
Cook v. United States
Page 3

Rule 60(b).2 Fed. R. Civ. P. 60(b). Second, treating Cook’s request as a Rule 60(b) motion to

reconsider, the district court found that “Cook has not met his burden of showing that he is entitled

to any relief . . . [, and that it was] not persuaded that there is any good reason . . . to change or

modify its decision.” (J.A. at 128.) The district court also found that Cook’s motion to extend the

time to file an appeal was untimely because it was not filed within the prescribed time. Lastly, the

district court declined to render an opinion as to whether Cook’s November 4, 2005 notice of appeal

to this Court (the § 2255 appeal docketed under Case No. 05-6773) was timely.

       On February 9, 2006, pursuant to Rule 59(e), Cook filed a motion to alter and amend the

district court’s February 6, 2006 order denying his motion to reconsider. In this motion, Cook only

argues that the district court erred by failing to construe his August 25, 2005 motion to reconsider

under Rule 59(e); he does not contest the district court’s denial of his motion to extend the time to

file an appeal. Specifically, Cook asserted that his counsel failed to file the motion to reconsider by

August 19, 2005 because the login and password provided by the district court’s clerk’s office was

not current due to an upgrade in the Electronic Case Filing System (“ECF”). Therefore, according

to Cook, the district court should have construed his motion to reconsider (filed on August 25, 2005)

as a motion to alter or amend filed no later than August 19, 2005. On February 18, 2006, the district

court denied this motion. Noting Rule 6(b), the district court concluded that Cook could not avoid


       2
         In the district court’s order denying Cook’s motion to reconsider, the district court stated
that the judgment was entered on August 5, 2005. This is incorrect. The district court issued its
opinion on August 5, 2005, and the entry of judgment occurred on August 8, 2005. This error,
nonetheless, did not affect the district court’s determination that Cook’s motion to reconsider
could not be construed as a request for relief under Rule 59(e) because Cook’s motion to
reconsider was filed on August 25, 2005, more than ten days after the judgment was entered. See
infra Part II. B.
No. 06-5276
Cook v. United States
Page 4

or circumvent the mandatory ten-day time limit proscribed in Rule 59(e). Fed. R. Civ. P. 6(b). On

February 22, 2006, Cook filed a timely notice of appeal, challenging the district court’s February 18,

2006 denial of his motion to alter and amend. We docketed the appeal as Case No. 06-5276.

       Approximately four months later, on June 12, 2006, we dismissed Cook’s first appeal (the

§ 2255 appeal docketed under Case No. 05-6773) as untimely under Rule 4 of the Federal Rules of

Appellate Procedure.3 In our order, however, we noted that Cook’s second appeal (the February 22,

2006 appeal docketed under Case No. 06-5276), was still pending before us. Thus, Cook’s appeal

from the district court’s denial of his motion to alter and amend is the matter presently before us.4



       3
        Rule 4(a) provides, “[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.” Fed. R. App. P. (4)(a)(1)(B). Here, the order denying Cook’s § 2255 petition
was entered on August 8, 2005. Cook did not file his notice of appeal until November 4, 2005,
well beyond the 60 days.
       4
         It should be noted that, in a footnote in his brief, Cook purports to argue that the district
court erroneously denied his motion to extend the time to file a notice of appeal. The district
court denied this motion in its February 6, 2006 order. In his notice of appeal for the instant
matter, Cook does not appeal the February 6th order but only the February 18, 2006 order which
pertains solely to the district court’s consideration of his motion under Rule 60(b) instead of Rule
59(e). Because Cook failed to appeal the February 6th order, we lack jurisdiction to consider this
claim. See Dillon v. United States, 184 F.3d 556, 557-58 (6th Cir. 1999) (en banc) (noting that
the requirement under Federal Rule of Appellate Procedure 3(c) that a notice of appeal designate
the judgment, order, or part thereof being appealed is jurisdictional and applicable to § 2255
petitions.); see also Caudill v. Hollan, 431 F.3d 900, 906 (6th Cir. 2005) (applying Rule 3(c) and
holding that “we will entertain arguments on all objections and asserted errors prior to the final
disposition of a case if a party indicates in its notice of appeal that it appeals either the final
judgment or the final order in the case. We will not, however, absent specific mention in the
notice of appeal, entertain issues raised in post-judgment motions if the notice of appeal states
only that the appeal is from the final order or the final judgment.”); United States v. Universal
Mgmt. Servs., Corp., 191 F.3d 750, 757 (6th Cir. 1999) (“Because the notice of appeal references
only the district court’s summary judgment rulings, we do not have jurisdiction to consider issues
raised in the Motion for Reconsideration.”).
No. 06-5276
Cook v. United States
Page 5

                                                 II.

                                      A. Standard of Review

       We review the denial of a Rule 59(e) motion for abuse of discretion. Intera Corp. v.

Henderson, 428 F.3d 605, 619 (6th Cir. 2005) (citing Morales v. Am. Honda Motor Co., 151 F.3d

500, 518 (6th Cir. 1998)). “An abuse of discretion has been defined by this court as a ‘definite and

firm conviction that the trial court committed a clear error of judgment.’” Cincinnati Ins. Co. v.

Byers, 151 F.3d 574, 578-79 (6th Cir. 1998) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789,

790 (6th Cir. 1989)).

                                 B. Motion to Alter and Amend

       Cook contends that the district court erred by considering his August 25, 2005 motion as a

motion to reconsider under Rule 60(b) instead of under Rule 59(e). Specifically, Cook argues that

the district court should have treated his motion to reconsider as timely filed (for purposes of Rule

59(e)) on August 19, 2005 instead of the date it was actually filed—August 25, 2005. Cook reasons

that his motion would have been timely but for circumstances out of his control—namely, that a

district court clerk sent his counsel the wrong login and password for the ECF and that this prevented

his counsel from filing the motion on time.5 We reject this argument.



       5
         In essence, Cook is appealing the district court’s denial of his Rule 60(b) motion to
reconsider because he believes Rule 59(e) was the correct rule to apply. He does not challenge
the merits of the district court’s denial of his Rule 60(b) motion. Therefore, we do not address
the merits, nor do we consider Cook’s arguments concerning the underlying judgment dismissing
his § 2255 petition. See GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007) (“‘[A]n
appeal from [the] denial of Rule 60(b) relief does not bring up the underlying judgment for
review.’” (quoting Browder v. Director, Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978)) (alteration
in original)).
No. 06-5276
Cook v. United States
Page 6

       First, we note that in the recent case of Bowles v. Russell, the Supreme Court concluded that

deadlines that are statutorily imposed in civil cases are mandatory and jurisdictional. --- U.S. ----,

127 S.Ct. 2360, 2364-66 (2007); see also 28 U.S.C. § 2107(c). In reaching this conclusion, the

Court clarified the distinction between jurisdictional rules (where the timelines are dictated by

statute) and claim-processing rules (where the timelines are dictated by procedural rules and time

prescriptions adopted by the court). Bowles, 127 S.Ct. at 2364-66. The Court concluded that

jurisdictional rules are mandatory; therefore, their time limits cannot be waived. On the other hand,

claim-processing rules are not jurisdictional—thus, their time limits can be waived. Id. The Court

explained that, “[b]ecause [o]nly Congress may determine a lower federal court’s subject-matter

jurisdiction . . . it was improper for courts to use the term ‘jurisdictional’ to describe emphatic time

prescriptions in rules of court.” Id. at 2364. (internal quotation marks and citations omitted, and

second alteration in original). As such, “when an appeal has not been prosecuted in the manner

directed, within the time limited by the acts of Congress, it must be dismissed for want of

jurisdiction.” Id. at 2366 (quotation marks omitted).

       In light of Bowles, we recently concluded that Federal Rules of Civil Procedure 59(e) and

6(b) are claim-processing rules because their time limits are not statutorily imposed. See National

Ecological Found., et al. v. Alexander, et al., --- F.3d ----, 2007 WL 2213278, at *6 (6th Cir. Aug.

3, 2007). Therefore, such rules may be waived absent a timely objection. Id. However, “[a]lthough

not jurisdictional, a claim-processing rule is nonetheless mandatory and ‘district courts must observe

the clear limits of [time prescriptions] when they are properly invoked.’” Wilburn v. Robinson, 480

F.3d 1140, 1146 (D.C. Cir. 2007) (quoting Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403,
No. 06-5276
Cook v. United States
Page 7

406 (2005)) (second alternation in original).

       Pertinent to the matter before us, “[a]ll Rule 59(e) motions must ‘be filed no later than 10

days after entry of the judgment.’” Johnson v. Dellatifa, 357 F.3d 539, 542 (6th Cir. 2004) (quoting

Fed. R. Civ. P. 59(e)).6 The district court may not enlarge or extend the ten-day time limit for any

party seeking relief under Rule 59(e). See Fed. R. Civ. P. 6(b). Hence, “[w]here a party’s Rule 59

motion is not filed within the mandatory 10-day period, it is appropriate for a court to consider the

motion as a motion pursuant to Rule 60 for relief from judgment.” Feathers v. Chevron U.S.A., 141

F.3d 264, 268 (6th Cir. 1998). Furthermore, because Rules 59(e) and 6(b) are claim-processing

rules, their time prescriptions may be waived if not properly invoked. See Alexander, --- F.3d ----,

2007 WL 2213278, at *6; Robinson, 480 F.3d at 1146.

       Here, the district court’s order denying Cook’s § 2255 petition was filed on August 5, 2005

and entered on August 8, 2005. Thus, any relief sought by Cook under Rule 59(e) should have been

filed within ten days of the entry of judgment—August 22, 2005. See Fed. R. Civ. P. 6(b) and 59(e);

Johnson, 357 F.3d at 542. Cook’s motion to reconsider was filed on August 25, 2005. The district

court recognized that Cook’s motion to reconsider was filed outside the ten-day limitations period

and properly invoked the time prescriptions, thereby construing his motion under Rule 60(b) instead

of Rule 59(e). See Feathers, 141 F.3d at 268; United States v. Partin, 109 F. App’x 767, 768 (6th

Cir. 2004); Fortune v. United States, 106 F. App’x 386, 387 (6th Cir. 2004).

       To the extent that Cook argues that the reason he failed to file within the ten-day period was



       6
         A timely filed Rule 59(e) tolls the running of time limitations for filing a notice of appeal
until the district court rules or otherwise disposes of the motion. See Fed. R. App. P. 4(a)(4).
No. 06-5276
Cook v. United States
Page 8

because his counsel was given an incorrect login and password to the ECF, this argument is

unavailing. Even if Cook’s counsel attempted to electronically file the motion on Friday, August

19, 2005, and this attempt failed, Cook’s counsel had until Monday, August 22, 2005 to file the

motion. Cook offers no evidence as to why his counsel did not attempt to re-file the motion

electronically, or to file through other methods, nor does he show even that his counsel attempted

to contact the clerk’s office about the problem by the end of the day on Monday. Indeed, the letter

offered by Cook’s counsel explaining his late filing indicates that his eventual communication with

the clerk’s office about the purported faulty password was not until August 23, 2005, after the

deadline had already expired.

       The district court acknowledged the mandatory claim-processing rule and properly invoked

the ten-day procedural rule. Accordingly, the district court did not err by refusing to treat Cook’s

motion to reconsider (filed after the ten-day time period) under Rule 59(e), and therefore, did not

abuse its discretion in denying Cook’s subsequent Rule 59(e) motion to alter and amend.

                                               III.

       For the stated reasons, we AFFIRM the district court’s February 18, 2006 order denying

Cook’s motion to alter and amend.
