United States v. Randall Clair Kuchenberg

16 F.3d 1229 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. UNITED STATES of America, Appellee, v. Randall Clair KUCHENBERG, Appellant. No. 93-2774. United States Court of Appeals, Eighth Circuit. Submitted: January 28, 1994. Filed: February 3, 1994. Before McMILLIAN, MAGILL, and BEAM, Circuit Judges. PER CURIAM. [1] Randall Clair Kuchenberg pleaded guilty to drug charges. The district court1 denied Kuchenberg's first 28 U.S.C. Sec. 2255 motion to vacate his sentence, finding all of the grounds meritless. Kuchenberg filed a second section 2255 motion, and on October 5, 1992, the district court again denied relief on the merits. On November 2, 1992, Kuchenberg served a motion for reconsideration, which the district court denied on January 13, 1993. On March 11, 1993, Kuchenberg served a second motion to reconsider the denial of his second section 2255 motion. On June 14, 1993, the district court denied this motion to reconsider. Kuchenberg filed a notice of appeal on July 2, 1993. [2] When the government is a party, Federal Rule of Appellate Procedure 4(a) provides that the litigants have sixty days from entry of judgment within which to file a notice of appeal. Under the applicable version of the appellate rules, the timely service of a Federal Rule of Civil Procedure 59(e) motion within ten days of judgment would toll the time for filing the notice of appeal; a motion under Federal Rule of Civil Procedure 60(b) would not. Kuchenberg did not specify whether his motions were under Rule 59(e) or Rule 60(b). Because Kuchenberg did not allege any ground for relief under Rule 60(b), however, we construe the motions as Rule 59(e) motions. As such, they were untimely and did not toll the time for filing a notice of appeal. Kuchenberg did not appeal the district court's October 5, 1992 denial of his second section 2255 motion within sixty days. Therefore, we lack jurisdiction to review that denial. See Wilson v. Runyon, 981 F.2d 987, 988-89 (8th Cir. 1992) (per curiam), cert. denied, 113 S. Ct. 2968 (1993); Reinbold v. Dewey County Bank, 942 F.2d 1304, 1307 (8th Cir. 1991), cert. denied, 112 S. Ct. 1499 (1992). [3] Accordingly, we dismiss the appeal for lack of jurisdiction. Footnotes [1] The Honorable Edward J. McManus, Senior United States District Judge for the Northern District of Iowa