David W. Nail v. Bill K. Wilson

The appellee notified this court that he was not served with process in the district*
court and would not be filing a brief or participating in this appeal. After examining the
appellant's brief and the record, we have concluded that oral argument is unnecessary. The
appeal is submitted on the appellant's brief and the record. See FED. R. APP. P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2009*
Decided August 18, 2009
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-4207
DAVID W. NAIL,
Petitioner-Appellant,
v.
BILL K. WILSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South
Bend Division.
No. 3:08-CV-400-WCL
William C. Lee,
Judge.
O R D E R
David Nail, an Indiana prisoner, filed a petition under 28 U.S.C. § 2254 challenging a
prison disciplinary decision. The district court denied the petition on the merits. Nail did

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not appeal that decision, but filed two postjudgment motions, the first of which simply
rehashes the merits of his petition for habeas corpus. That postjudgment motion was filed
more than ten days after entry of judgment, so the district court declined to construe it as a
motion for reconsideration under Federal Rule of Civil Procedure 59(e). See Easley v.
Kirmsey, 382 F.3d 693, 696 n.2 (7th Cir. 2004); Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d
757, 762 (7th Cir. 2001). The court instead characterized the motion as an unauthorized
successive collateral attack and dismissed it for lack of subject-matter jurisdiction. See
Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005); Collins v. Holinka, 510 F.3d 666, 667 (7th Cir.
2007). The court’s ruling prompted Nail to file his second postjudgment motion, this time
arguing that the district court should have construed the previous submission as a timely
Rule 59 motion because, Nail says, he was unable to file it sooner due to an unexpected
change in the prison’s photocopying policy. But Nail’s second motion was filed more than
ten days after his first was denied, and so the district court construed it as a motion under
Federal Rule of Civil Procedure 60(b). The court denied it.
We already have issued a jurisdictional ruling in this appeal limiting our review to
the order denying Nail’s second postjudgment motion. See Nail v. Wilson, No. 08-4207 (7th
Cir. Mar. 17, 2009) (unpublished order). In that ruling we concluded that Nail’s notice of
appeal is untimely with respect to the district court’s other orders. Nail argues that we
should rescind the jurisdictional ruling and also review the merits of the district court’s
first two orders, but we see no reason to revisit our decision.
As to the denial of Nail’s second postjudgment motion, the district court’s analysis
is correct. The second motion points out a perceived flaw in the district court’s
characterization of Nail’s first postjudgment motion as a successive petition for habeas
corpus, but since the second motion was not filed until more than ten days after entry of
the order dismissing the first, it cannot be anything but a motion under Rule 60(b). See
Easley, 382 F.3d at 696 n.2. In the second motion Nail argues that the ten-day limit for filing
a Rule 59 motion should have been excused because his motion was late due to a change in
prison policy and through no fault of his own. That argument is not appropriate for a
motion under Rule 60(b). See Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir. 2008); Bell
v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Neuberg v. Michael Reese Hosp. Found.,
123 F.3d 951, 955 (7th Cir. 1997). And at all events, district courts lack the power to extend
the time for filing a Rule 59 motion, regardless of the circumstances. See FED. R. CIV. P.
6(b)(2); Talano, 273 F.3d at 761; Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994).
Nail has also filed what he calls a “Motion to Addend [sic] Appeal Brief” in which
he introduces a new argument. He seeks to argue that his first postjudgment motion was
actually filed within the ten-day period for filing a Rule 59(e) motion. He bases that
argument on his mistaken belief that the ten-day period began when he received a copy of

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the district court’s order. However, the ten-day period runs from the entry of judgment.
See Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008); Borrero v. City of Chicago, 456 F.3d
698, 701 (7th Cir. 2006). The date Nail received the judgment irrelevant. And in any event,
our order limiting review in this case to the order denying Nail’s second postjudgment
motion would foreclose this argument.
The judgment of the district court is AFFIRMED. Nail’s motion to amend his
appeal brief is DENIED.

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