Arthur Hayward, Jr. v. Kenneth C. Britt

Hayward petitioned for habeas corpus on the ground that he had inadequate counsel at his state trial for motor-vehicle theft. After an evidentiary hearing, the district court entered judgment denying the petition. The judgment was filed on September 11, 1975. On December 1, 1975, Hayward filed a motion for reconsideration of the judgment. Aware that his appeal time had run, he also requested that if his motion was denied the court vacate the original judgment and reenter it. The district judge denied the motion for reconsideration but vacated the previously entered judgment and entered an identical new judgment based upon the earlier opinion and order denying Hayward’s petition on the merits. The court also granted a certificate of probable cause to appeal. Notice of appeal from the newly entered judgment was timely.

Hayward asserts in answer to the state’s motion to dismiss the appeal that this court has jurisdiction pursuant to Fed.R.App.P. 4(a) and 22(b). He claims that the motion to reconsider may be treated as a motion under Fed.R.Civ.P. 60(b), and that under certain circumstances Rule 60(b) may be used as an alternative to review by appeal and as a means of enlarging the…