                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-2007

Blom v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3437




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Recommended Citation
"Blom v. USA" (2007). 2007 Decisions. Paper 225.
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DLD-31                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-3437
                                     ___________

                               DONALD ALBIN BLOM,
                                             Appellant

                                           v.

                  UNITED STATES OF AMERICA; LOUIS FOLINO


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. Civil No. 05-cv-00408)
                     District Judge: Honorable Joy Flowers Conti


                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 25, 2007


  Before:     BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                           (Opinion filed: November 9, 2007)


                                        OPINION
                                       _________


PER CURIAM

      Donald Albin Blom appeals from the order of the United States District Court for

the Western District of Pennsylvania denying his motion pursuant to Fed. R. Civ. P.
60(b). We conclude that the district court did not abuse its discretion in denying the

motion. Further, because this appeal presents no substantial question, we will summarily

affirm the district court's order. See Third Circuit LAR 27.4 and I.O.P. 10.6.

                                              I.

       On March 24, 2005, Blom filed a pro se § 2241 habeas petition. The district court

denied the petition and Blom appealed. On October 27, 2006, this court entered judgment

affirming the district court’s decision. See C.A. No. 06-2178. On March 19, 2007, Blom

filed a motion for relief from judgment in the district court. The district court denied the

motion on August 7, 2007. Blom filed a timely notice of appeal.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. The denial of a Rule 60(b)

motion is reviewed for abuse of discretion. See Reform Party of Allegheny County v.

Allegheny County Dep’t. of Elections, 174 F.3d 305, 311 (3d Cir. 1999). An appeal from

denial of relief under Rule 60(b) brings up only the subject matter of the motion and not

the underlying case.1 See Smith v. Evans, 853 F.2d 155, 158 n.1 (3d Cir. 1988).

                                             III.

       Although Blom’s motion was titled as arising under Federal Rule of Civil

Procedure 60(b), the motion primarily reiterated previous arguments raised in his § 2241

petition. As it raised no new arguments beyond those previously addressed by the district


       1
        Because this appeal relates to a petition brought under § 2241, no certificate of
appealability is required. See 28 U.S.C. § 2253(c)(1)(B).

                                             -2-
court, its primary purpose was to “relitigate the original issue;” thus, Blom’s motion could

have been viewed as an untimely motion for reconsideration under Rule 59(e) by the

district court. See Smith v. Evans, 853 F.2d 155, 158-159 (3d Cir. 1988); see also Turner

v. Evers, 726 F.2d 112, 114 (3d Cir. 1984) (the function of the motion, rather than the

caption, dictates which Rule applies). Since we previously summarily affirmed the

district court’s decision to dismiss Blom’s § 2241 petition, we clearly agree with the

district court’s initial judgment.

       Further, even if Blom’s motion were properly viewed as arising under Rule

60(b)(3), the district court correctly disposed of it, as there was no viable basis for

granting him relief.2 See Stridiron v. Stridiron, 698 F.2d 204, 206-07 (3d Cir. 1983).

       Because the district court did not abuse its discretion in denying the Rule 60(b)

motion and because this appeal presents no substantial question, we will summarily

affirm the district court’s order. See Third Circuit LAR 27.4 and I.O.P. 10.6.




       2
         Although Blom provided no basis for vacating the district court’s judgment, to
the extent that he continues his attempts to exhaust his underlying claim, he may seek
review after the BOP’s determination by filing another § 2241 petition in accordance with
any applicable procedural requirements.
                                           -3-
