2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-13-2012

Craig Scott v. Ebbert

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1617

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Recommended Citation

"Craig Scott v. Ebbert" (2012). 2012 Decisions. Paper 860.

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CLD-191 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1617

___________

CRAIG SCOTT,

Appellant

v.

WARDEN EBBERT ; 

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1:11-cv-00757)

District Judge: Honorable Sylvia H. Rambo

____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 

 10.6, on Request for Certificate of Appealability Pursuant to 28 U.S.C. § 

 2253(c)(2), and for Possible Dismissal due to a Jurisdictional Defect

May 31, 2012

Before: RENDELL, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: June 13, 2012)

_________

OPINION

_________

PER CURIAM

Appellant Craig Scott, proceeding pro se, appeals a February 6, 2012 order of the 

United States District Court for the Middle District of Pennsylvania denying his motion 
2

for reconsideration. He has requested that we grant him a certificate of appealability 

(COA). For the following reasons, we will summarily affirm the order of the District 

Court.

An inmate of the Federal Bureau of Prisons (BOP), Scott is serving a lengthy term 

of incarceration stemming from his involvement in several bank robberies. See, e.g., 

United States v. Scott, Nos. 96-4372–73, 1999 U.S. App. LEXIS 32479 (4th Cir. Dec. 13, 

1999); United States v. Decator, Nos. 95-5207–08, 1997 U.S. App. LEXIS 34600 (4th 

Cir. Dec. 11, 1997). In 2011, he petitioned for a writ of habeas corpus under 28 U.S.C. 

§ 2241, “seeking judicial review of BOP’s interpretation of 18 U.S.C. § 3585” in 

calculating his sentence. Scott averred that the BOP’s sentence computation was not 

“consistent with statute and case law.” The Magistrate Judge recommended denying the 

petition, and the Report and Recommendation was adopted by the District Court over 

Scott’s objections. See generally Scott v. Holder

Scott filed several unsuccessful post-judgment motions, only one of which is 

relevant to the present appeal. In January 2012, he moved for “reconsideration under 

Rule 60(b),”

, No. 1:11-CV-0757, 2011 U.S. Dist. 

LEXIS 75488 (M.D. Pa. July 13, 2011).

1

 1 Elsewhere, he described the motion as one requesting “amend[ment],” which is relief 

available under Rule 59, not Rule 60. See Blystone v. Horn, 664 F.3d 397, 413–15 (3d 

Cir. 2011) (discussing, in context of habeas corpus, the distinction between Rules 59 and 

60); see also Manco v. Werholtz, 528 F.3d 760, 761 (10th Cir. 2008) (reconfiguring 

untimely filed Rule 59 motion as timely filed Rule 60 motion). While we discuss Scott’s 

motion in the context of Rule 59, we apply the same standard of review to Rule 60(b) 

arguing that the District Court had failed to consider a legal theory 
3

proposed in his original habeas corpus petition. He urged the District Court to 

“reconsider its July 13, 2011 decision . . . due to its failure to consider a dispositive fact 

and legal precepts presented to it during proceedings.” Scott contended that failure to do 

so would allow the BOP to violate his “rights against cruel and unusual punishment, 

double jeopardy and due process.” In a February 6, 2012 order, the District Court set out 

the lengthy procedural history of the case thus far; finding that Scott had not “convinced 

this court to alter the order of July 13 . . . by any of his arguments,” it denied the motion. 

Scott appealed.

We have jurisdiction under 28 U.S.C. § 1291, but our review is limited to the 

District Court’s February 6 order; Scott’s notice of appeal was not filed within sixty days 

of the entry of any other order, see Fed. R. App. P. 4(a)(1)(B), and his January 2012 

motion did not toll the time to take an appeal, see Fed. R. App. P. 4(a)(4)(A) (tolling time 

to file an appeal for timely filed motions); Lizardo v. United States, 619 F.3d 273, 280 (3d 

Cir. 2010).

2

 Accordingly, we review the District Court’s order for abuse of discretion. 

Lazaridis v. Wehmer

The District Court correctly denied Scott’s motion. “A proper Rule 59(e) motion . 

, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).

 

motions, see Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008), as well as 

using the same twenty-eight day standard to determine appellate-tolling timeliness, see

Fed. R. App. P. 4(a)(4)(A)(vi). In other words, our analysis of Scott’s motion would be 

exactly the same under either standard. 

2 While Scott’s motion was indeed untimely filed, the District Court denied it on the 

merits and the Government (understandably) did not object on timeliness grounds. Our 

review is therefore also of its merits. See Lizardo, 619 F.3d at 278. 
4

. . must rely on one of three grounds: (1) an intervening change in controlling law; (2) the 

availability of new evidence; or (3) the need to correct clear error of law or prevent 

manifest injustice.” Id. (citations omitted). Scott has not pointed to a “clear error of law” 

of the sort that would compel reconsideration; with regard to his 18 U.S.C. § 4001(a) 

argument, Scott cites to no law supporting his interpretation of the statute, and fails to 

demonstrate that the District Court overlooked a meritorious argument in adjudicating his 

habeas petition. Because he has not shown that the District Court’s ruling was “founded 

on an error of law or a misapplication of law to the facts,” Doe v. Nat’l Bd. of Med. 

Exam’rs

Thus, because this appeal does not present a substantial question, we will 

summarily affirm the District Court’s order. 

, 199 F.3d 146, 154 (3d Cir. 1999), he has failed to make a convincing case that 

the District Court abused its discretion.

See Murray v. Bledsoe, 650 F.3d 246, 248 

(3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Scott’s motion 

requesting a certificate of appealability is denied as unnecessary; his motion requesting 

remand is denied as well. See United States v. Cepero, 224 F.3d 256, 264–65 (3d Cir. 

2000) (en banc) (certificates of appealability not required in appeals of § 2241 

proceedings); see also Close v. Thomas, 653 F.3d 970, 974 n.2 (9th Cir. 2011); Curtis v. 

Chester, 626 F.3d 540, 543 n.1 (10th Cir. 2010).