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    The United States Court of Appeals for the Tenth Circuit dismissed Alondo Gay's appeal of the denial of two motions he filed seeking post-conviction relief. Gay had pled guilty to drug charges and was sentenced to over 20 years in prison. Years later he filed motions seeking to challenge his conviction, but the court found they were untimely or moot. The court determined that Gay's underlying claims were actually a second or successive habeas petition that required authorization, which he did not obtain, so the lower court lacked jurisdiction to consider the merits of his motions.

    Original Description:

    Filed: 2007-01-24 Precedential Status: Non-Precedential Docket: 05-6103

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    The United States Court of Appeals for the Tenth Circuit dismissed Alondo Gay's appeal of the denial of two motions he filed seeking post-conviction relief. Gay had pled guilty to drug charges and was sentenced to over 20 years in prison. Years later he filed motions seeking to challenge his conviction, but the court found they were untimely or moot. The court determined that Gay's underlying claims were actually a second or successive habeas petition that required authorization, which he did not obtain, so the lower court lacked jurisdiction to consider the merits of his motions.

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    15 views6 pages

    United States v. Gay, 10th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit dismissed Alondo Gay's appeal of the denial of two motions he filed seeking post-conviction relief. Gay had pled guilty to drug charges and was sentenced to over 20 years in prison. Years later he filed motions seeking to challenge his conviction, but the court found they were untimely or moot. The court determined that Gay's underlying claims were actually a second or successive habeas petition that required authorization, which he did not obtain, so the lower court lacked jurisdiction to consider the merits of his motions.

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    of 6

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    FO R TH E TENTH CIRCUIT

    January 24, 2007


    Elisabeth A. Shumaker
    Clerk of Court

    U N ITED STA TES O F A M ER ICA,


    Plaintiff-Appellee,
    v.
    A LO N D O LA RO Y N E G A Y ,

    No. 05-6103
    (D.C. No. 98-CR-118-T)
    (W .D. Okla.)

    Defendant-Appellant.

    OR D ER AND JUDGM ENT *

    Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.

    Defendant-appellant Alondo Laroyne Gay pled guilty to one count of


    distributing approximately 245 grams of crack cocaine and was sentenced to
    262 months in federal prison. In September 2001, approximately two years after
    he w as sentenced, M r. Gay filed a 28 U.S.C. 2255 motion. The district court
    denied this motion. On September 20, 2004, M r. Gay filed a motion, ostensibly

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent except under the doctrines of law of the case, res judicata
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    under Federal Rule of Civil Procedure 60(b)(4) and (6), seeking relief from the
    denial of his 2255 motion (September 2004 M otion). 1 This motion was denied
    on the ground that it was not timely under Fed. R. Civ. P. 60(b)(4) and not filed
    within a reasonable time under Rule 60(b)(6). R., Doc. 116. On January 27,
    2005, M r. Gay filed a second motion, also ostensibly under Rule 60(b) (January
    2005 M otion) asking the district court to reconsider its denial of his September
    2004 M otion, because he had not been given the opportunity to file a reply brief. 2
    This motion was denied. M r. Gay then filed his notice of appeal on M arch 22,
    2005. Although the notice of appeal is less than clear, M r. Gay appears to appeal
    the denial of both his September 2004 M otion and his January 2005 M otion.
    1

    Rule 60(b)(4) allows for relief from a final judgment, order, or proceeding
    of the district court when the judgment is void. Rule 60(b)(6) allows for relief
    for any other reason justifying relief from the operation of the judgment.
    2

    Although M r. Gay simply denominated this motion a motion to reconsider,


    it is really a second Rule 60(b) motion seeking relief from the denial of his
    September 2004 M otion.
    The Federal Rules of Civil Procedure do not recognize a motion to
    reconsider. Instead, the rules allow a litigant subject to an adverse
    [order] to file either a motion to alter or amend the [order] pursuant
    to Fed.R.Civ.P. 59(e) or a motion seeking relief from the [order]
    pursuant to Fed.R.Civ.P. 60(b). These two rules are distinct; they
    serve different purposes and produce different consequences. W hich
    rule applies to a motion depends essentially on the time a motion is
    served. If a motion is served within ten days of the rendition of [the
    order], the motion ordinarily will fall under Rule 59(e). If the motion
    is served after that time it falls under Rule 60(b).
    Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (citation
    omitted).
    -2-

    Analysis
    To the extent M r. Gay appeals the denial of his September 2004 M otion,
    the appeal is untimely and is dismissed for lack of jurisdiction. Under Federal
    Rule of Appellate Procedure 4(a)(1)(B): 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. M r. Gays notice of appeal
    was filed almost five months after the October 27, 2004, order denying the
    September 2004 M otion. This Court can exercise jurisdiction only if a notice of
    appeal is timely filed. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239
    (10th Cir. 2006).
    To the extent M r. Gay appeals the denial of his January 2005 M otion, his
    appeal is moot. In his January 2005 M otion, M r. Gay sought reversal of the
    denial of his September 2004 M otion under Rule 60(b) because the district court
    denied that motion two days after the government filed its response. M r. Gay
    argued that the district court committed procedural error because he was not
    allowed time to file a reply to the governments response before his motion was
    ruled upon.
    A plaintiff may appeal the denial of a Rule 60(b) motion seeking relief
    from an underlying order or judgment and such an appeal raises for review only
    the district courts order of denial, not the underlying order or judgment itself.
    See Van Skiver, 952 F.2d at 1243. A review of the record shows that the
    -3-

    September 2004 M otion was actually a second or successive 2255 petition in


    that it essentially attemptedthrough the use of Rule 60(b)to set aside M r. Gays
    underlying conviction.
    Under Gonzalez[ v. Crosby, 545 U.S. 524 (2005)], a 60(b) motion is
    a second or successive petition if it in substance or effect asserts or
    reasserts a federal basis for relief from the petitioners underlying
    conviction. Conversely, it is a true 60(b) motion if it either
    (1) challenges only a procedural ruling of the habeas court which
    precluded a merits determination of the habeas application, or
    (2) challenges a defect in the integrity of the federal habeas
    proceeding, provided that such a challenge does not itself lead
    inextricably to a merits-based attack on the disposition of a prior
    habeas petition.
    Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citations omitted).
    M r. Gays September 2004 M otion argued that because of errors regarding his
    sentencing and ineffective assistance of counsel regarding his direct appeal, his
    conviction was void. Consequently, the district court did not have jurisdiction to
    grant the relief requested in the motion. United States v. Gallegos, 142 F.3d
    1211, 1212 (10th Cir. 1998) (per curiam) (holding that the district court lacks
    jurisdiction to decide a second or successive 2255 petition without prior
    authorization from this court). This, in turn, affects our jurisdiction here on
    mootness grounds.
    Federal courts lack jurisdiction to decide moot cases because their
    constitutional authority extends only to actual cases or controversies. To satisfy
    the Article III case or controversy requirement, a litigant must have suffered some

    -4-

    actual injury that can be redressed by a favorable judicial decision. Iron Arrow
    Honor Socy v. Heckler, 464 U.S. 67, 70 (1983) (citation omitted). It is not
    enough that a plaintiff wishes to have the moral satisfaction of a judicial ruling
    that he was right and his adversary was wrong; the relief sought must have legal
    effect in determining the present and future rights and obligations of the parties
    Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir.
    2004); see Air Line Pilots Assn v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.
    1990) (holding that the test is whether the relief sought would make a difference
    to the legal interests of the parties (as distinct from their psyches, which might
    remain deeply engaged with the merits of the litigation)).
    Here, by appealing from the denial of the January 2005 M otion, M r. Gay is,
    in effect, requesting that this court reverse the denial of his January 2005 M otion,
    vacate the denial of his September 2004 M otion, and order the district court to
    consider a reply brief from him before ruling on the September 2004 M otion.
    This court has no power to accommodate that request because the district court
    had no jurisdiction to rule on the September 2004 M otion. The district court only
    had jurisdiction to transfer the September 2004 M otion to this court, which is not
    the relief that M r. Gay sought in his January 2005 M otion. 3
    3

    Despite the fact that we have determined that the September 2004 M otion
    was a second or successive 2255 petition, the order denying that motion is
    undisturbed because there is no timely appeal from that denial before this court.
    The timely appeal from the order denying the January 2005 M otion, raises for
    (continued...)
    -5-

    Conclusion
    To the extent that M r. Gays appeal seeks review of the denial of his
    September 2004 M otion, his appeal is DISM ISSED for lack of jurisdiction
    because it is untimely. To the extent that M r. Gays appeal seeks review of the
    denial of his January 2005 M otion, his appeal is DISM ISSED for lack of
    jurisdiction because it is moot. M r. Gays application to proceed in forma
    pauperis is G RA N TED .

    Entered for the Court

    M ary Beck Briscoe


    Circuit Judge

    (...continued)
    review only the district courts order of denial [of that motion] not the underlying
    judgment [denying the September 2004 M otion]. See Van Skiver, 952 F.2d at
    1243.
    -6-

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