                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         NOV 14 2001
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                    PATRICK FISHER
                                                                              Clerk


 LEE AUTRY MOORE,

          Plaintiff - Appellant,
 v.

 JOE WILLIAMS, Warden Lea County
 Correctional Facility; ROBERT
                                                        No. 01-2114
 PERRY, Secretary of Corrections;
                                              (D.C. No. CIV-00-1344-LH/LCS)
 NEW MEXICO DEPARTMENT OF
                                                     (D. New Mexico)
 CORRECTIONS; BERNALILLO
 COUNTY; WILLIAM RIORDAN,
 Judge, Second Judicial District Court,
 NM; FRANK H. ALLEN, JR., Judge,
 Second Judicial District Court, NM,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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 Autry Moore, proceeding pro se, appeals the dismissal of his complaint

against various New Mexico officials and institutions. We affirm the decision of

the district court.

       Moore, currently a prisoner in the state of New Mexico, filed suit under 42

U.S.C. § 1983, alleging his sentence of nine consecutive life terms was not

authorized under New Mexico state law. He claims false imprisonment by the

state and various state officials in violation of his federal civil rights and seeks

$16 million in damages. The district court sua sponte dismissed the suit against

the two defendant judges with prejudice because of absolute immunity, and

dismissed the remainder of the claims without prejudice, citing Heck v.

Humphrey, 512 U.S. 477 (1994), which prevents a convicted defendant from

bringing a § 1983 suit for damages if the underlying conviction is valid.

       We first consider whether Moore timely filed his appeal of the district

court’s judgment to determine whether we have jurisdiction over his appeal.

Judgment for the defendants was entered on December 29, 2000. A motion to

alter the judgment pursuant to Fed. R. Civ. P. 59(e) was filed on January 22,

2001. That motion was denied on March 16, 2001. On April 5, 2001, Moore

filed a notice of appeal.

       The notice of appeal was filed over three months after the final judgment in

this case. Therefore, unless Moore received an extension of time to file his


                                         -2-
appeal, his notice was untimely, see Fed. R. App. P. 4(a)(1)(A) (requiring all

notices of appeal to be filed within thirty days after entry of judgment), and we

would have no jurisdiction to hear his appeal. He did not request any extension.

Instead, on January 22 Moore filed a motion to alter the judgment under Rule

59(e) before the district court. This motion did not extend the time to file an

appeal from the judgment because it was not timely under Rule 59(e). See Fed.

R. App. P. 4(a)(4)(A) (allowing a notice of appeal to be filed within thirty days of

the resolution of a Rule 59 motion where the motion was timely filed); Fed. R.

Civ. P. 59(e) (requiring that a motion be made within ten days of entry of

judgment). 1

      Considering our obligation to liberally construe pro se pleadings, we

interpret Moore’s January 22 pro se motion before the district court as a motion

under Fed. R. Civ. P. 60(b) seeking relief from the judgment, a motion which may

be filed more than ten days after entry of judgment. See VanSkiver v. United

States, 952 F.2d 1241, 1243 (10th Cir. 1991) (stating that the decision to consider

a motion under Rule 59 or Rule 60 depends on the time of the filing of the

motion, and that a motion not served within ten days “must be construed as one



      1
        There are no “unique circumstances” present in this case that would
permit us to overlook plaintiff’s failure to comply with the timing requirements of
Rule 59(e) and allow us to treat this as an appeal of the underlying judgment. See
VanSkiver v. United States, 952 F.2d 1241, 1243 n.3 (10th Cir. 1991).

                                         -3-
pursuant to Rule 60(b)”). But even construing Moore’s January 22 motion as a

Rule 60(b) motion does not extend the time for the filing of a notice of appeal of

the underlying judgment. See Fed. R. App. P. 4(a)(4)(A)(vi) (requiring a Rule

60(b) motion to be filed within ten days of entry of judgment in order to extend

the time for the filing of a notice of appeal).

       Nonetheless, Moore’s notice of appeal was filed within thirty days of the

March 16 denial of his January 22 motion, which we interpret as a Rule 60(b)

motion. Therefore, we can and will review Moore’s appeal, not as an untimely

appeal of the underlying judgment, but instead as a timely appeal of the district

court’s denial of his January 22 motion, which we interpret as falling under Rule

60(b). VanSkiver, 952 F.2d at 1243. We review the denial of a Rule 60(b)

motion for an abuse of discretion. See White v. Am. Airlines, Inc., 915 F.2d

1414, 1425 (10th Cir. 1990). Relief under Rule 60(b) is limited to mistake,

inadvertence, surprise, excusable neglect, newly discovered evidence, fraud,

misrepresentation, a void judgment, a satisfied judgment, or “any other reason

justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). Only

the provisions relating to “mistake” or “any other reason” are arguably applicable

in this case.

       “Mistake” may apply if the lower court has made obvious errors of law.

See VanSkiver, 952 F.2d at 1244. We therefore examine whether any obvious


                                          -4-
errors of law exist in the district court’s analysis. The district court first

dismissed the claims against the state court defendant judges with prejudice based

on absolute immunity. “It is well settled that judges have absolute immunity from

liability for damages for acts committed within the apparent scope of their

judicial duties.” Wiggins v. N.M. State Supreme Court Clerk, 664 F.2d 812, 815

(10th Cir. 1981) (citations omitted). In this case there is no allegation that the

judges acted outside of the apparent scope of their judicial duties. Mere claims

that the judges misapplied New Mexico sentencing law do not suffice. See Hunt

v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (holding that state judges are

absolutely immune from § 1983 liability except when acting “in the clear absence

of all jurisdiction”). Therefore, the district court was correct in dismissing the

claims against the state court judges.

      The district court then dismissed all of the remaining claims without

prejudice under Heck. Heck bars any § 1983 suit seeking only monetary relief

based on allegations that the prisoner’s conviction or sentence was a violation of

federal rights. Heck, 512 U.S. at 483. The Court stated that such a suit could not

proceed if “establishing the basis for the damages claim necessarily demonstrates

the invalidity of the conviction.” Id. at 481–82. This bar also includes claims

that would render the sentence invalid. Id. at 486–87. Such a damages suit can

only proceed if the challenged conviction or sentence “has been reversed on direct


                                           -5-
appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” Id. at 487.

      Moore’s suit seeks relief based on an allegation that his sentence was

improper under state law, and that it therefore constitutes false imprisonment and

a violation of due process under the Fourteenth Amendment. If successful,

Moore’s suit would render his sentence invalid and is therefore barred under

Heck. The district court did not err in dismissing the complaint without

prejudice. We therefore find no obvious errors of law in the district court’s order.

      Having reviewed the materials in the district court record and the briefs in

this matter, we also conclude that the grounds for relief under Rule 60(b) for “any

other reason justifying relief from the operation of the judgment” do not apply in

this case. Therefore, the district court did not abuse its discretion in rejecting

Moore’s motion under Fed. R. Civ. P. 60(b).

      Moore must address alleged errors in his state court sentencing through

other routes. They cannot be raised through a suit under § 1983.

      We AFFIRM the dismissal of Moore’s complaint by the district court. 2

      The mandate shall issue forthwith.


      2
         We note that Moore is required to continue making payments for the
appellate filing fee, as required by the District Court’s Order of May 14, 2001,
which allowed Moore to proceed without prepayment of that filing fee.

                                         -6-
ENTERED FOR THE COURT



Carlos F. Lucero
Circuit Judge




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