887 F.2d 1089
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
William C. AUSTIN, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 17, 1989.*
Decided Oct. 2, 1989.
Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.
William C. Austin appeals, pro se, the district court's decision which denied his motion, brought pursuant to Fed.R.Civ.P. 60(b)(2) and (3), seeking reversal of his convictions on two counts of making false statements, in violation of 18 U.S.C. Sec. 1001, and one count of mail fraud, in violation of 18 U.S.C. Sec. 1341. We affirm.
On May 13, 1986, the district court entered a judgment which partially denied Austin's motion, brought pursuant to 28 U.S.C. Sec. 2255, seeking the vacation of his convictions and sentences.1 On May 12, 1988, Austin filed a motion pursuant to Fed.R.Civ.P. 60(b)(2) and (3) seeking relief from the judgment which partially denied his Sec. 2255 motion. However, a motion for relief from a final judgment brought under subsections (b)(2) and (b)(3) of Rule 60 must be filed not more than one year after entry of the judgment sought to be set aside. Fed.R.Civ.P. 60(b); see Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.1981), cert. denied, 455 U.S. 942 (1982). Further, the taking of an appeal does not enlarge the one-year time limit. Corn v. Guam Coral Company, 318 F.2d 622, 629 n. 13 (9th Cir.1963). Therefore, even assuming without deciding that Austin properly could bring a Rule 60(b) motion to vacate the judgment in a Sec. 2255 proceeding,2 Austin's motion filed more than a year after entry of the district court judgment was untimely. See Wood v. McEwen, 644 F.2d at 801.
In addition, we find Austin's arguments in support of his Rule 60(b) motion to be lacking in merit. We note that we have previously rejected substantially the same arguments advanced by Austin in a prior appeal. In these circumstances, the district court did not abuse its discretion in denying Austin's Rule 60(b) motion without a hearing.3 See Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989).
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App. 34(a) and Ninth Circuit Rule 34-4. Therefore, Austin's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Upon Austin's appeal, this court affirmed the district court's partial denial of Austin's Sec. 2255 motion. United States v. Austin, 817 F.2d 1352 (9th Cir.1987). Neither party has raised the matter, and in light of our decision here, we intimate no view on the propriety of bringing a Rule 60(b) motion to set aside a judgment which this court has already affirmed
We note that in a case decided before the promulgation of the Rules Governing Sec. 2255 Cases, 28 U.S.C. foll. Sec. 2255, we reversed and remanded where the district court had denied a criminal defendant's Fed.R.Civ.P. 60(b) motion to vacate an adverse judgment in a Sec. 2255 proceeding. See Winhoven v. United States, 201 F.2d 174, 174-75 (9th Cir.1952)