                       UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


SAMUEL ALLAN MOODY,                   
             Petitioner-Appellant,
                v.
GARY MAYNARD, Commissioner of
South Carolina District Court;                No. 03-6650
STATE OF SOUTH CAROLINA; CHARLES
CONDON, Attorney General of the
State of South Carolina,
             Respondents-Appellees.
                                      
                                      
In re: SAMUEL ALLAN MOODY,                     No. 03-206
                         Movant.
                                      
          Appeal from the United States District Court
         for the District of South Carolina, at Anderson.
           Cameron McGowan Currie, District Judge.
                      (CA-01-3919-8-22-BI)

                      Argued: May 7, 2004

                     Decided: July 16, 2004

 Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.



No. 03-6650 dismissed; No. 03-206 denied by unpublished per
curiam opinion.
2                        MOODY v. MAYNARD
                             COUNSEL

ARGUED: Neal Lawrence Walters, Charlottesville, Virginia, for
Appellant. Samuel Creighton Waters, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CARO-
LINA, Columbia, South Carolina, for Appellees. ON BRIEF: Henry
Dargan McMaster, Attorney General, John W. McIntosh, Chief Dep-
uty Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, Columbia, South Carolina, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Samuel Allan Moody appeals an order of the district court denying
his pro se application for habeas corpus relief, see 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2004), and the district court’s subsequent
order denying his pro se "motion for rehearing." Moody also seeks
permission, via pro se motion in this court, to file a successive appli-
cation for habeas relief. See 28 U.S.C.A. § 2244(b) (West Supp.
2003).

   We dismiss Moody’s appeal of the order denying habeas relief for
lack of appellate jurisdiction. We decline to issue Moody a certificate
of appealability to appeal the denial of his motion for rehearing, and
dismiss that portion of his appeal as well. Finally, we deny the motion
seeking authorization to file a successive habeas application.

                                   I.

   Moody pled guilty in South Carolina state court to numerous
charges, including second-degree burglary, larceny, malicious injury
to personal property, felony DUI, and multiple counts of safecracking.
                         MOODY v. MAYNARD                             3
Moody received a 15-year prison sentence, which consisted of multi-
ple concurrent sentences. Moody did not directly appeal his convic-
tions or sentence.

   In February 1998, Moody filed a pro se action for post-conviction
relief ("PCR") in state court, contending that his guilty plea was not
voluntary because the state judge misstated during sentencing the law
regarding the percentage of Moody’s prison term that he would be
required to serve, that he was not sentenced in accordance with an
alleged plea agreement, and that his attorney provided ineffective
assistance of counsel by failing to correct the foregoing and other
problems. Following an evidentiary hearing at which the prosecutor
and Moody’s own trial counsel denied the existence of a plea agree-
ment and Moody admitted having decided to plead guilty before the
alleged misstatement was made and even before sentencing occurred,
the PCR court denied relief and dismissed Moody’s petition. Moody
unsuccessfully appealed the denial of PCR relief to the South Caro-
lina Court of Appeals, and the Supreme Court of South Carolina
denied Moody’s subsequent petition for certiorari review of the PCR
denial.

   On October 5, 2001, Moody filed in district court this pro se appli-
cation for habeas relief under section 2254. Moody’s federal habeas
application raised three claims for relief: 1) that his guilty plea was
involuntary because the sentencing judge misstated the percentage of
the sentence he would serve; 2) that he received ineffective assistance
of counsel because his lawyer failed to correct the sentencing judge’s
purported misstatement or object to the failure of either the govern-
ment or the sentencing court to abide by the terms of the plea agree-
ment; and 3) that the prosecutors failed to correct the sentencing
judge’s misstatement regarding the percentage of the sentence that
Moody would be required to serve. The State moved for summary
judgment.

   On April 18, 2002, Moody filed what purported to be a second pro
se habeas application, including new assertions that his conviction
resulted from a "coerced confession," that counsel failed to object to
the "stacking" of charges, and that counsel did not advise him of the
right to appeal his conviction. The district court construed this filing
as a response to the State’s summary judgment motion and essentially
4                         MOODY v. MAYNARD
permitted Moody to amend his habeas application to include these
claims.

   The district court granted the State’s motion for summary judgment
and dismissed Moody’s application. On Moody’s claim that his guilty
plea was involuntary because the sentencing judge misinformed him
about the percentage of his sentence that the law required him to
serve, the court adopted the magistrate judge’s finding that there was
no evidence that Moody relied on any statement by the sentencing
court in deciding to plead guilty. In fact, Moody testified at his state
PCR hearing that he had already made the decision to plead guilty
before the sentencing judge made the statement about which Moody
complains.* With respect to Moody’s ineffective assistance claim, the
district court denied it on the merits, concluding that the PCR court
did not clearly err in its decision to credit over Moody’s contrary
assertion the testimony of Moody’s attorney, the prosecutor, and law
enforcement officers that there was no plea agreement. Finally, the
district court concluded that Moody’s claim based on the State’s
alleged failure to correct statements by the sentencing judge was pro-
cedurally barred.

   As for the claims Moody was permitted to assert in his response
to the State’s motion for summary judgment, the district court con-
cluded that Moody was procedurally barred from raising all but the
claim that his attorney provided ineffective assistance by failing to
advise him of his right to appeal his convictions. Relying on the PCR
court’s finding that Moody "‘failed to show that the outcome of his
trial would have been different but for the alleged deficient perfor-
mance of his counsel,’" J.A. 56, the district court denied relief on that
claim as well. On December 2, 2002, the district court entered an
order granting summary judgment to the State on Moody’s habeas
application.

   On January 6, 2003, Moody filed a "motion for rehearing" in which
he simply reasserted various factual allegations underlying his inef-
fective assistance claim and his claim that his guilty plea was not vol-

  *Moody reiterated this position in his federal pleadings, stating that he
"decided to plead guilty in Jan. 97" but "didn’t go to court until April
97." J.A. 63.
                          MOODY v. MAYNARD                             5
untary. Moody did not challenge the district court’s conclusion that
a number of his claims were procedurally barred, nor did he challenge
the denial of his claim that his attorney rendered ineffective assistance
by failing to explain the right to appeal. Although, as Moody con-
cedes, the motion was untimely under Rule 59(e) of the Federal Rules
of Civil Procedure, the district court construed it as a Rule 59(e)
motion to alter or amend the judgment. On March 27, 2003, the court
denied the motion because Moody failed to identify any newly dis-
covered evidence, intervening changes in the law, or grounds demon-
strating that the judgment would result in manifest injustice.

   On April 14, 2003, Moody filed a Notice of Appeal from the dis-
trict court’s December 2, 2002, order denying relief under section
2254, as well as the district court’s March 27, 2003, order denying
Moody’s "motion for rehearing." The appeal was docketed as case
number 03-6650.

   On June 30, 2003, with the appeal in case 03-6650 pending, Moody
filed in this court a pro se motion for authorization to file a second
or successive section 2254 application. In it, he raises a jumble of
claims, some old and some new. Moody’s motion for authorization to
file a successive habeas application was docketed as case number 03-
206. The cases then were consolidated.

                                   II.

A. Appeal of the December 2, 2002, Order Denying the Habeas
Application

   On December 2, 2002, the district court entered its order granting
summary judgment to the State on all of the claims asserted in
Moody’s application for relief under section 2254. Moody had thirty
days to file the Notice of Appeal. See Fed. R. App. P. 4(a). Moody
filed his Notice of Appeal on April 2, 2003, well beyond the 30-day
deadline.

   On December 13, Moody submitted, in the form of a letter, a
request for an extension of time in which to file the notice of appeal.
Rule 4(a)(5) permits a district court, upon the appellant’s motion, to
6                         MOODY v. MAYNARD
extend the time for filing the Notice of Appeal, provided the motion
for extension of time is filed no later than 30 days after the expiration
of the original 30 day period for filing the Notice of Appeal. See Fed.
R. App. P. 4(a)(5)(A)(i). The district court, for good cause or excus-
able neglect, may grant a maximum of 30 additional days. See Fed.
R. App. P. 4(a)(5)(C). Moody’s request was timely, but the district
court never ruled on the request, effectively denying it because the
mere filing of a motion for an extension does not operate to extend
or toll the 30-day period for filing the Notice of Appeal.

   Potentially, Moody could have preserved his appeal of the underly-
ing order through Appellate Rule 4(a)(4), which tolls the running of
the thirty-day period until after the disposition of a "timely file[d]"
post-judgment motion under Rule 59(e) of the Federal Rules of Civil
Procedure. Fed. R. App. P. 4(a)(4)(A) (emphasis added). To be
timely, a Rule 59(e) motion must be filed within ten days of entry of
the judgment. Although Moody filed a "motion for rehearing on
report of Summary Judgment," J.A. 59, which the district court con-
strued as a Rule 59(e) motion to alter or amend the judgment, he did
not do so until December 31, 2002. Because only a timely Rule 59(e)
motion tolls the running of the 30-day period for filing a Notice of
Appeal, the exception created by Appellate Rule 4(a)(4) was unavail-
able to Moody when he filed his motion outside of the mandatory 10-
day period prescribed by Rule 59(e). See Alston v. MCI Communica-
tions Corp., 84 F.3d 705, 706 (4th Cir. 1996); accord Garcia-Velquez
v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir. 2004). The fact
that the district court addressed Moody’s motion on the merits did not
cure the untimeliness of the motion because a district court lacks
authority to extend the ten-day time limit of Rule 59(e) for tolling
purposes under Appellate Rule 4(a)(4)(A). See Alston, 84 F.3d at 706
("The thirty-day time period for filing the notice of appeal could not
be deferred on the basis of the district court’s order [permitting] Als-
ton[ ] [to file a] belated Rule 59(e) motion."). Moody’s motion, there-
fore, is more properly viewed as one for relief from a judgment under
Rule 60(b) of the Federal Rules of Civil Procedure, which may be
filed within a year from the entry of the order sought to be appealed.
See United States v. Winestock, 340 F.3d 200, 203 (4th Cir.) (treating
habeas applicant’s "Motion for Reconsideration, or in the Alternative,
Motion for Certificate of Appealability" as a Rule 60(b) motion
because it "was filed more than ten days after the entry of judgment"),
                          MOODY v. MAYNARD                             7
cert. denied, 124 S. Ct. 496 (2003); Small v. Hunt, 98 F.3d 789, 797
(4th Cir. 1996). Accordingly, to the extent that Moody appeals the
district court’s December 2, 2002, order denying Moody’s application
for habeas relief under section 2254, we lack jurisdiction and dismiss
his appeal.

B. Appeal of the March 27, 2003, Order Denying the Motion for
Rehearing

  The Notice of Appeal also refers specifically to the district court’s
March 27, 2003, order denying Moody’s motion for rehearing, which
we view as a motion for relief under Rule 60(b). With respect to this
order, the Notice of Appeal was timely and, therefore, Rule 4 of the
Federal Rules of Appellate Procedure poses no jurisdictional impedi-
ment to appellate review.

   The timely filing of Moody’s Notice of Appeal with respect to the
denial of his motion for rehearing permits us to consider two addi-
tional preliminary questions. One is whether Moody’s "motion for
rehearing," which rehashed claims raised in the initial habeas applica-
tion, was, in fact, a successive habeas application for which pre-filing
authorization was required from this court. See 28 U.S.C.A.
§ 2244(b)(3). The other is whether we should issue a Certificate of
Appealability ("COA") to Moody, allowing him to obtain review of
the denial of his motion for rehearing. See 28 U.S.C.A.
§ 2253(c)(1)(A) (West Supp. 2003).

   The answer to the first question may be more readily apparent than
the answer to the second. Because Moody merely used his motion for
rehearing to repeat the same factual bases for the claims he asserted
in his section 2254 application, his motion appears to assert succes-
sive claims for habeas relief. In Winestock, after first determining that
the applicant’s motion for reconsideration should be viewed as a Rule
60(b) motion because it did not comply with the 10-day time limit
under Rule 59(e), we held that "district courts must treat Rule 60(b)
motions as successive collateral review applications when failing to
do so would allow the applicant to ‘evade the bar against relitigation
of claims presented in a prior application.’" 340 F.3d at 206 (quoting
Calderon v. Thompson, 523 U.S. 538, 553 (1998)). Winestock
instructs that "a motion directly attacking the prisoner’s conviction or
8                         MOODY v. MAYNARD
sentence will usually amount to a successive application, while a
motion seeking a remedy for some defect in the collateral review pro-
cess will generally be deemed a proper motion to reconsider." Id. at
207. Moody’s motion for rehearing clearly and directly attacks his
conviction rather than some defect in process that would be cogniza-
ble under an authentic Rule 60(b) motion. Thus, Moody’s motion for
rehearing almost certainly contains successive habeas claims for
which pre-filing authorization was not obtained, see 28 U.S.C.A.
§ 2244(b)(3), stripping the district court of jurisdiction to rule on the
motion.

   Nevertheless, before we can consider the district court’s jurisdic-
tion, we must ensure that we ourselves have jurisdiction to review the
proceedings below. Absent the issuance of a COA, a habeas applicant
may not appeal from a district court’s "final order in a habeas corpus
proceeding" under section 2254. See 28 U.S.C.A. § 2253(c)(1)(A). As
noted previously, because Moody’s motion was filed more than 10
days from the entry of judgment, we view it as a motion for relief
under Rule 60(b). See Winestock, 340 F.3d at 203; Alston, 84 F.3d at
706. Our recent decision in Reid v. Angelone, 369 F.3d 363 (4th Cir.
2004), established that the COA requirement set forth in section
2253(c) applies to the appeal of an order denying a Rule 60(b) motion
that, in turn, seeks relief from the underlying denial of a habeas appli-
cation. See id. at 369. In Reid, we granted a COA on one of the issues
raised in the prisoner’s Rule 60(b) motion, but then held that the
motion was, in effect, a successive habeas application over which the
district court had no jurisdiction. See id. at 374-75. We explained that
"we may not forgo the COA inquiry altogether, as there is no exemp-
tion in § 2253(c) for questions of subject-matter jurisdiction" and that
"we are bound in all cases to ascertain our own appellate jurisdiction
before reviewing a district court judgment." Id. at 374 n.7. Thus, even
when we are presented with an appeal raising a claim that is recharac-
terized under Winestock and subject to dismissal as a successive
habeas claim — as is likely the case here — the proper analytical pro-
gression requires us first to decide whether to issue a COA.

   We now turn to the question of whether Moody is entitled to a
COA for the denial of his Rule 60(b) motion. Section 2253(c) allows
the issuance of a COA only when the petitioner makes a "substantial
showing of the denial of a constitutional right." 28 U.S.C.A.
                          MOODY v. MAYNARD                               9
§ 2253(c)(2). The statute "requires an overview of the claims in the
habeas petition and a general assessment of their merits," rather than
"full consideration of the factual or legal bases adduced in support of
the claims." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When
the district court rejects the constitutional claim at issue on the merits,
"the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the dis-
trict court’s assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the dis-
trict court dismisses the claim on procedural grounds, the petitioner
is entitled to a COA only if "jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitu-
tional right" and "jurists of reason would find it debatable whether the
district court was correct in its procedural ruling." Id.

   In determining whether the petitioner’s claims satisfy the require-
ments of section 2253(c), we must begin by identifying the claims
advanced by Moody in his Rule 60(b) motion. Moody’s motion con-
sisted of a long list of what he considered factual errors by the district
court in its disposition of his claims. Moody did not challenge the dis-
trict court’s conclusion that some of the claims were procedurally
barred, and he did not challenge the denial of his ineffective assis-
tance claim to the extent that it was based on the allegation that his
lawyer failed to explain that he could directly appeal his convictions.
Accordingly, Moody’s motion really pursues only two of his original
claims: 1) that his guilty plea was not knowingly, intelligently, or vol-
untarily made because the state judge misstated the percentage of his
sentence he would be required to serve; and 2) that he received inef-
fective assistance of counsel in that his attorney failed to properly
advise him about the amount of time he would serve and failed to
raise the government’s breach of the plea agreement during sentenc-
ing.

   With respect to these claims, Moody has failed to demonstrate in
any way "that reasonable jurists would find the district court’s assess-
ment of the constitutional claims debatable or wrong." Slack, 529
U.S. at 484. Accordingly, we conclude that Moody has failed to make
a substantial showing of the denial of a constitutional right as regards
either of the claims raised in Moody’s motion for rehearing, and we
deny a certificate of appealability in 03-6650.
10                        MOODY v. MAYNARD
                                  III.

  Finally, we must determine whether or not to grant Moody’s
motion for authorization to file a successive habeas application, No.
03-206, which he filed on June 30, 2003, pursuant to section 2244.
This motion, which was filed pro se, raised two claims. First, Moody
again raised an ineffective assistance of counsel claim, contending
among other things that his lack of adequate representation caused
Moody’s guilty plea not to be knowing or voluntary. Second, Moody
contended that the parole eligibility requirements imposed by South
Carolina law are unconstitutional.

   We may "authorize the filing of a second or successive application
only if . . . the application makes a prima facie showing that the appli-
cation satisfies the requirements of [28 U.S.C.A. § 2244(b)]." 28
U.S.C.A. § 2244(b)(3)(c). Section 2244(b) requires Moody to show
that his successive claims rely upon "a new rule of constitutional law"
that was "previously unavailable," 28 U.S.C.A. § 2244(b)(2)(A), or a
"factual predicate" that "could not have been discovered previously
through the exercise of due diligence," 28 U.S.C.A. § 2244(b)(2)
(B)(i). We must consider each of the claims raised in the proposed
successive application and, if any single claim in the proposed appli-
cation meets the statutory requirements, the entire application may be
filed. See In re Williams, 330 F.3d 277, 281 (4th Cir. 2003).

   Moody’s ineffective assistance claim is predicated primarily upon
identical factual bases recycled from his initial habeas application,
and therefore fails to pass muster. Under section 2244(b)(1), "[a]
claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be
dismissed." To the extent the ineffective assistance claim relies upon
different factual bases than previously asserted, Moody fails to make
the required prima facie showing of merit under section 2244(b).

   Moody’s claim that South Carolina’s statutory provisions relating
to parole eligibility offend his rights under various constitutional
guarantees is a claim he raises for the first time. Precisely what
Moody is claiming is far from clear, although the lack of precision is
understandable given the pro se nature of his motion for authoriza-
tion. The heart of his claim is that two South Carolina parole statutes
                          MOODY v. MAYNARD                             11
— S.C. Code Ann. §§ 16-1-60 and 24-21-640 — abridge his rights
under the Ex Post Facto Clause, deprive him of due process, and con-
stitute cruel and unusual punishment as applied to him. Moody’s
claim, charitably construed, challenges the execution of the sentence
as well as the sentence itself. To the extent Moody challenges the
original imposition of his sentence based on these statutes, the claim
is clearly subject to the limits imposed by section 2244(b)(2)(A) upon
successive habeas claims. And, Moody has failed to demonstrate that
this claim relies upon "a new rule of constitutional law" that was "pre-
viously unavailable," 28 U.S.C.A. § 2244(b)(2)(A), or a "factual pred-
icate" that "could not have been discovered previously through the
exercise of due diligence," 28 U.S.C.A. § 2244(b)(2)(B)(i).

   To the extent Moody is challenging the execution or administration
of his sentence, we have acknowledged that there is authority to the
effect that "a § 2254 petition challenging decisions relating to the exe-
cution of the judgment does not amount to a successive application
if the prisoner filed his previous § 2254 petition before those deci-
sions were made and challenged only the underlying criminal judg-
ment." Winestock, 340 F.3d at 205 n.4. Where, however, a prisoner
knows "all of the facts necessary to raise his [attack on the execution
of his sentence] before . . . fil[ing] his initial federal petition," such
a claim is successive and subject to the limits imposed by section
2244(b). See Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir.) (empha-
sis added), cert. denied, 124 S. Ct. 287 (2003); cf. James v. Walsh,
308 F.3d 162, 168 (2nd Cir. 2002) (concluding prisoner’s § 2254
application challenging his release date based on credit for time
served was not successive because he "could not have argued that he
was in custody in violation of laws of the United States before the
time when, according to his calculations, he should have been
released").

   Here, Moody’s challenge to the execution of his sentence is not
based on any factual premise that was not in existence when he filed
his initial federal habeas application. Accordingly, Moody’s claim is
successive and subject to our review under the gatekeeping require-
ments of section 2244(b), which he fails to satisfy. We therefore
decline to grant authorization for Moody to file his successive habeas
claims.
12                      MOODY v. MAYNARD
                                IV.

   For the foregoing reasons, we dismiss Moody’s appeal and deny
his motion for authorization to file a successive habeas application.

                                           No. 03-6650 DISMISSED
                                               No. 03-206 DENIED
