* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The Court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 14 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEE AUTRY MOORE, Plaintiff - Appellant, v. JOE WILLIAMS, Warden Lea County Correctional Facility; ROBERT PERRY, Secretary of Corrections; NEW MEXICO DEPARTMENT OF CORRECTIONS; BERNALILLO COUNTY; WILLIAM RIORDAN, Judge, Second Judicial District Court, NM; FRANK H. ALLEN, JR., Judge, Second Judicial District Court, NM, Defendants - Appellees. No. 01-2114 (D.C. No. CIV-00-1344-LH/LCS) (D. New Mexico)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.- 2 -

Lee Autry Moore, proceeding pro se, appeals the dis missal of his complaint against various New Mexico officials and institutio ns. We affirm the decision of the district court. Moore, currently a prisoner in the state of New Mex ico, filed suit under 42 U.S.C. § 1983, alleging his sentence of nine consec utive life terms was not authorized under New Mexico state law. He claims f alse imprisonment by the state and various state officials in violation of h is federal civil rights and seeks $16 million in damages. The district court sua spo nte dismissed the suit against the two defendant judges with prejudice because of absolute immunity, and dismissed the remainder of the claims without preju dice, citing Heck v. Humphrey , 512 U.S. 477 (1994), which prevents a convicted d efendant from bringing a § 1983 suit for damages if the underlyin g conviction is valid. We first consider whether Moore timely filed his ap peal of the district court’s judgment to determine whether we have juris diction over his appeal. Judgment for the defendants was entered on December29, 2000. A motion to alter the judgment pursuant to Fed. R. Civ. P. 59(e ) was filed on January 22, 2001. That motion was denied on March 16, 2001. O n April 5, 2001, Moore filed a notice of appeal. The notice of appeal was filed over three months af ter the final judgment in this case. Therefore, unless Moore received an ext ension of time to file his1 There are no “unique circumstances” present in th is case that would

permit us to overlook plaintiff’s failure to comply with the timing requirements of Rule 59(e) and allow us to treat this as an appeal of the underlying judgment. See VanSkiver v. United States , 952 F.2d 1241, 1243 n.3 (10th Cir. 1991). - 3 - appeal, his notice was untimely, see Fed. R. App. P. 4(a)(1)(A) (requiring all notices of appeal to be filed within thirty days af ter entry of judgment), and we would have no jurisdiction to hear his appeal. He did not request any extension. Instead, on January 22 Moore filed a motion to alte r the judgment under Rule 59(e) before the district court. This motion did n ot extend the time to file an appeal from the judgment because it was not timely under Rule 59(e). See Fed. R. App. P. 4(a)(4)(A) (allowing a notice of appeal to be filed within thirty days of the resolution of a Rule 59 motion where the motion was timely filed); Fed. R. Civ. P. 59(e) (requiring that a motion be made with in ten days of entry of judgment). 1 Considering our obligation to liberally construe pr o se pleadings, we interpret Moore’s January 22 pro se motion before t he district court as a motion under Fed. R. Civ. P. 60(b) seeking relief from the judgment, a motion which may be filed more than ten days after entry of judgment . See VanSkiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991) (stating that the decision to consider a motion under Rule 59 or Rule 60 depends on the ti me of the filing of the motion, and that a motion not served within ten day s “must be construed as one- 4 -

pursuant to Rule 60(b)”). But even construing Moor e’s January 22 motion as a Rule 60(b) motion does not extend the time for the filing of a notice of appeal of the underlying judgment. See Fed. R. App. P. 4(a)(4)(A)(vi) (requiring a Rule 60(b) motion to be filed within ten days of entry o f judgment in order to extend the time for the filing of a notice of appeal). Nonetheless, Moore’s notice of appeal was filed wit hin thirty days of the March 16 denial of his January 22 motion, which we interpret as a Rule 60(b) motion. Therefore, we can and will review Moore’s appeal, not as an untimely appeal of the underlying judgment, but instead as atimely appeal of the district court’s denial of his January 22 motion, which we i nterpret as falling under Rule 60(b). VanSkiver , 952 F.2d at 1243. We review the denial of a Rule 60(b) motion for an abuse of discretion. See White v. Am. Airlines, Inc. , 915 F.2d 1414, 1425 (10th Cir. 1990). Relief under Rule 60( b) is limited to mistake, inadvertence, surprise, excusable neglect, newly di scovered evidence, fraud, misrepresentation, a void judgment, a satisfied jud gment, or “any other reason justifying relief from the operation of the judgmen t.” Fed. R. Civ. P. 60(b). Only the provisions relating to “mistake” or “any other reason” are arguably applicable in this case. “Mistake” may apply if the lower court has made obv ious errors of law. See VanSkiver , 952 F.2d at 1244. We therefore examine whether a ny obvious- 5 -

errors of law exist in the district court’s analysi s. The district court first dismissed the claims against the state court defend ant judges with prejudice based on absolute immunity. “It is well settled that jud ges have absolute immunity from liability for damages for acts committed within the apparent scope of their judicial duties.” Wiggins v. N.M. State Supreme Co urt Clerk , 664 F.2d 812, 815 (10th Cir. 1981) (citations omitted). In this case there is no allegation that the judges acted outside of the apparent scope of theirjudicial duties. Mere claims that the judges misapplied New Mexico sentencing la w do not suffice. See Hunt v. Bennett , 17 F.3d 1263, 1266 (10th Cir. 1994) (holding thatstate judges are absolutely immune from § 1983 liability except when acting “in the clear absence of all jurisdiction”). Therefore, the district cou rt was correct in dismissing the claims against the state court judges. The district court then dismissed all of the remain ing claims without prejudice under Heck . Heckbars any § 1983 suit seeking only monetary relief based on allegations that the prisoner’s conviction or sentence was a violation of federal rights. Heck , 512 U.S. at 483. The Court stated that such a su it could not proceed if “establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction.” Id. at 481–82. This bar also includes claims that would render the sentence invalid. Id. at 486–87. Such a damages suit can only proceed if the challenged conviction or senten ce “has been reversed on direct2 We note that Moore is required to continue making payments for the

appellate filing fee, as required by the District C ourt’s Order of May 14, 2001, which allowed Moore to proceed without prepayment o f that filing fee. - 6 - appeal, expunged by executive order, declared inval id by a state tribunal authorized to make such determination, or called in to question by a federal court’s issuance of a writ of habeas corpus.” Id. at 487. Moore’s suit seeks relief based on an allegation th at his sentence was improper under state law, and that it therefore con stitutes false imprisonment and a violation of due process under the Fourteenth Ame ndment. If successful, Moore’s suit would render his sentence invalid and is therefore barred under Heck . The district court did not err in dismissing the complaint without prejudice. We therefore find no obvious errors of law in the district court’s order. Having reviewed the materials in the district courtrecord and the briefs in this matter, we also conclude that the grounds for relief under Rule 60(b) for “any other reason justifying relief from the operation o f the judgment” do not apply in this case. Therefore, the district court did not a buse its discretion in rejecting Moore’s motion under Fed. R. Civ. P. 60(b). Moore must address alleged errors in his state court sentencing through other routes. They cannot be raised through a suitunder § 1983. We AFFIRM the dismissal of Moore’s complaint by the districtcourt. 2 The mandate shall issue forthwith.- 7 - ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge