                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-7496



WILLIE A. BROWN,

                                            Plaintiff - Appellant,

          versus


GENE JOHNSON, Director of the Department of
Corrections of Virginia; HELEN F. FAYHEY,
Chairwoman for the Virginia Parole Board,

                                           Defendants - Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-05-622-1)


Submitted:   January 31, 2006          Decided:     February 27, 2006


Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Willie A. Brown, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

             Willie A. Brown, a Virginia inmate, appeals the district

court’s order dismissing his claims under 42 U.S.C. § 1983 (2000).

We modify the district court’s order to dismiss the case with

prejudice and affirm the district court’s order as modified.

             Brown claimed that the Virginia Parole Board (“Board”)

exceeded its statutory authority by denying him parole based on an

improper standard of review.      The district court dismissed Brown’s

case as improperly filed because it believed the action should have

been filed as a petition under 28 U.S.C. § 2254 (2000).                Brown

filed    a   motion   for   reconsideration   that    the   district   court

construed as a motion under Fed. R. Civ. P. 60(b).                However,

because the motion was filed within ten days of the district

court’s order,* it is more properly construed as a Fed. R. Civ. P.

59(e) motion.     See In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992).

Brown’s timely Rule 59(e) motion tolled the appeal period for

appealing the underlying order until after the denial of the motion

for reconsideration.        Fed. R. App. P. 4(a)(4); see also Dove v.

CODESCO, 569 F.2d 807, 809 (4th Cir. 1978).          Therefore, we possess

jurisdiction to rule on the merits of the underlying order.

             A civil rights action under § 1983 is the appropriate

vehicle to challenge the conditions of confinement, but not the


     *
      Applying Fed. R. Civ. P. 6(a), which excludes weekends from
the time calculation, Brown’s motion for reconsideration was filed
within ten days of the district court’s order.

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fact or length of the confinement.                  Preiser v. Rodriguez, 411 U.S.

475, 498-99 (1973).           In order to challenge the fact or duration of

his confinement, a state prisoner must seek federal habeas corpus

relief or the appropriate state relief.                   Wilkinson v. Dotson, 544

U.S. 74, 125 S. Ct. 1242, 1245 (2005).

               The district court concluded that if it granted Brown’s

desired relief, “it would immediately call into question his denial

of parole and in turn the length of his confinement.”                     However, the

Supreme Court came to the opposite conclusion in Wilkinson.                           In

Wilkinson, inmate Johnson filed a § 1983 action to challenge the

state procedures used to deny him parole. Johnson claimed the Ohio

Parole Board used an improper set of guidelines in its decision

making.    Wilkinson, 125 S. Ct. at 1245.                     The Court held that he

could pursue his claim under § 1983 because success for Johnson

“means    at    most     a    new    parole     hearing    at    which    Ohio     parole

authorities may, in their discretion, decline to shorten his prison

term.”    Id. at 1248.            In this case, Brown likewise challenges the

methodology       used       by    the    Board     in   determining      his     parole.

Specifically,      he    asserts         that   the   Board    relied    on   a   legally

impermissible standard — the seriousness of his offense — as a

basis for denying him parole.                   Just as in Wilkinson, if Brown

succeeds it would at most result in a new parole hearing where the

Board would retain its full discretion to deny parole.                            Because

Brown’s claim even if successful would not necessarily result in a


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speedier release, it does not lie at “the core of habeas corpus,”

and may be brought in a § 1983 action.           Preiser, 411 U.S. at 489;

Wilkinson, 125 S. Ct. at 1248.

              Nonetheless, we affirm the order of the district court

because Brown is precluded from relief under § 1983 as a matter of

law.    See United States v. Smith, 395 F.3d 516, 518-19 (4th Cir.

2005) (holding appellate court may affirm on any ground apparent

from the record).      Brown claims that the Board improperly used the

seriousness of his offense to deny him parole.            We have held that

reliance on the seriousness of the offense is a proper standard for

parole decisions.       See Bloodgood v. Garaghty, 783 F.2d 470, 472,

475 (4th Cir. 1986); see also Greenholtz v. Inmates of the Nebraska

Penal & Corr. Complex, 442 U.S. 1, 11, 15-16 (1979).                  Brown’s

argument under § 1983 fails as a matter of law.

              Accordingly, we modify the district court’s order to

dismiss the case with prejudice and affirm the district court’s

order as modified.       We dispense with oral argument because the

facts   and    legal   contentions   are     adequately   presented    in   the

materials     before   the   court   and     argument   would   not   aid   the

decisional process.

                                                        AFFIRMED AS MODIFIED




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