Rule 59(e) and Rule 60(b) Motions

If the judge denies your § 2255 motion, you can appeal, or you can first ask the same judge to reconsider. A Rule 59(e) motion must be filed within 28 days of the judgment and pauses the appeal deadline. A Rule 60(b) motion can come later, but it usually does not pause the appeal deadline, and if it re-argues the merits it will be treated as a second § 2255 motion.

The usual option after a denial is an appeal. Sometimes it makes sense to ask for reconsideration under Federal Rule of Civil Procedure 59 or 60 first. Both of these Rules are available to the section 2255 litigant. See Rule 12 of the Rules Governing Section 2255 Proceedings; United States v. Clark, 984 F.2d 31 (2d Cir. 1993) (a motion to reconsider a § 2255 ruling is available and is treated as a Rule 59(e) or Rule 60(b) motion depending on when it is filed); Gonzalez v. Crosby, 545 U.S. 524, 534 (2005) (“Rule 60(b) has an unquestionably valid role to play in habeas cases.”).

Rule 59(e) vs. Rule 60(b) at a glance

What is a Rule 59(e) motion?

Rule 59(e) authorizes a motion to alter or amend a judgment. A Rule 59(e) motion must be filed no later than 28 days after the entry of the judgment. This is a strict time limit, and the court has no authority to grant more time. See Fed. R. Civ. P. 6(b)(2); United States v. Fiorelli, 337 F.3d 282 (3d Cir. 2003) (decided when the deadline was 10 days). A timely Rule 59(e) motion tolls (pauses) the time to appeal the district court’s judgment on the § 2255 motion. See Fed. R. App. P. 4(a)(4)(A)(iv). The 60-day time to appeal will not run again until the Rule 59(e) motion is disposed of. Note this important point: if the Rule 59(e) motion is not timely (meaning, not filed within 28 days of the entry of the judgment), then the time to appeal is not tolled.

What can a Rule 59(e) motion argue?

It asks the judge to fix errors in the decision. The Third Circuit described it as a “device to relitigate the original issue” decided by the district court, used to allege legal error. Fiorelli, 337 F.3d 282 (quoting Smith v. Evans, 853 F.2d 155, 158-59 (3d Cir. 1988)). But it is not a chance to raise arguments or evidence you could have presented before the judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008). Grounds courts have recognized include:

• Errors of law or fact in the court’s decision. See McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam) (a Rule 59(e) motion may be granted to “correct manifest errors of law or fact upon which the judgment is based” (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995))).

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

• Errors of procedure or evidence. See Browder v. Director, 434 U.S. 257, 266 (1978) (the lack of an evidentiary hearing could be raised as a reason for reconsideration).

• Clerical mistakes. A clerical mistake or a mistake from oversight or omission in the judgment can be corrected under Fed. R. Civ. P. 60(a), whenever it is found.

• Newly discovered or previously unavailable evidence, a need to prevent manifest injustice, or an intervening change in controlling law. These are the other grounds listed in the treatise passage quoted in McDowell, 197 F.3d at 1255 n.1. The Rule 60(b) grounds are covered below.

Federal Rule of Civil Procedure 60 (FRCP 60)

Fed. R. Civ. P. 60, often called FRCP 60 or “Rule 60,” lets a federal court correct or reopen a final judgment. It has five parts:

• Rule 60(a): clerical mistakes. The court may correct “a clerical mistake or a mistake arising from oversight or omission” in a judgment, order or other part of the record whenever one is found, on motion or on its own. Once an appeal is docketed and pending, the correction needs the appellate court’s leave.
• Rule 60(b): grounds for relief. The court may relieve a party from a final judgment for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that could not have been found in time for a Rule 59(b) motion; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void judgment; (5) a judgment that has been satisfied, rests on an earlier judgment that was reversed or vacated, or would no longer be equitable to apply going forward; or (6) “any other reason that justifies relief.”
• Rule 60(c): timing. Every Rule 60(b) motion must be made “within a reasonable time.” Motions under (b)(1), (2) and (3) also must be made no more than a year after the judgment or order. Filing the motion does not suspend the judgment or affect its finality.
• Rule 60(d): other powers. The rule does not limit a court’s power to hear an independent action for relief from a judgment, to grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified, or to set aside a judgment for fraud on the court.
• Rule 60(e): old writs abolished. Rule 60(e) abolishes bills of review and “writs of coram nobis, coram vobis, and audita querela” in civil cases. In federal criminal cases, coram nobis survives under the All Writs Act. See our page on coram nobis, coram vobis and audita querela.

How FRCP 60 applies in a § 2255 case

A § 2255 case is handled in the criminal case, but Rule 12 of the Rules Governing Section 2255 Proceedings lets the court apply the Federal Rules of Civil Procedure when they are not inconsistent with the statute or the § 2255 Rules. That is how Rule 60 reaches § 2255 judgments. Four Supreme Court decisions set the limits:

• Gonzalez v. Crosby, 545 U.S. 524 (2005): a Rule 60(b) motion that attacks the court’s ruling on the merits of a claim is really a second or successive habeas filing. One that attacks “some defect in the integrity of the federal habeas proceedings” is a true Rule 60(b) motion. Id. at 532.
• Banister v. Davis, 590 U.S. 504 (2020): a timely Rule 59(e) motion is not a second or successive habeas application.
• Kemp v. United States, 596 U.S. 528 (2022): “mistake” in Rule 60(b)(1) includes a judge’s legal error, so the one-year limit applies.
• BLOM Bank SAL v. Honickman, 605 U.S. 204 (2025): “Relief under Rule 60(b)(6) requires extraordinary circumstances,” and that standard does not become less demanding because of what the movant hopes to do once the case is reopened. Id. at 210. Rule 60(b)(6) is a catchall that covers only grounds not already covered by (b)(1) through (b)(5). Id. at 211. The Court also noted that intervening developments in the law “by themselves rarely constitute the extraordinary circumstances required.” Id. at 216 (quoting Agostini v. Felton, 521 U.S. 203, 239 (1997)). BLOM Bank was a civil case, but it applies the same Rule 60(b)(6) standard a § 2255 movant must meet.

What is a Rule 60(b) motion?

Rule 60(b) allows a motion for relief from a judgment, including after the 28-day Rule 59(e) deadline has passed. Specifically, an unsuccessful section 2255 movant may, within a reasonable time and no more than one year after the judgment, file a Rule 60(b) motion for relief from judgment on the grounds of (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, through the exercise of reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59; or (3) fraud, misrepresentation or misconduct by the opposing party. See Fed. R. Civ. P. 60(b)(1)-(3), (c)(1). Rule 60 also permits the unsuccessful section 2255 movant to, within a “reasonable time,” file a 60(b) motion for relief from judgment on the grounds that (4) the judgment is void; (5) the judgment has been satisfied, is based on an earlier judgment that has been vacated, or applying the judgment prospectively would not be equitable; or (6) any other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6), (c)(1).

A Rule 60(b) motion pauses the appeal deadline only if it is filed within 28 days after the judgment. Fed. R. App. P. 4(a)(4)(A)(vi). Most Rule 60(b) motions are filed later, so in most cases the 60-day appeal clock keeps running. Do not let it run out while you wait for a ruling.

Does a judge’s legal error count as a Rule 60(b)(1) “mistake”?

Yes. In Kemp v. United States, 596 U.S. 528 (2022), the Supreme Court held that the word “mistake” in Rule 60(b)(1) includes a judge’s errors of law. Kemp was itself a § 2255 case. The prisoner argued that the judge had miscalculated his § 2255 deadline, and he filed under Rule 60(b)(6), the catch-all, which has no fixed one-year limit.

The Court said that kind of claim belongs under Rule 60(b)(1). Rule 60(b)(6) is available only when reasons (1) through (5) do not apply. So a motion that says “the judge got the law wrong” must be filed within one year of the judgment. Fed. R. Civ. P. 60(c)(1). Kemp filed more than a year later, and his motion was untimely.

The practical lesson: if you think the judge made a legal error, a timely Rule 59(e) motion or an appeal is the safer path. Do not count on Rule 60(b)(6) to reach a legal error after the one-year limit.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

Why is Rule 59(e) usually the better choice?

If you are going to ask for reconsideration, a timely Rule 59(e) motion is usually safer, for two reasons. First, while decisions on both Rule 59 and 60 motions are appealable, appellate review of a Rule 60 motion is limited to review of the denial of the Rule 60 motion only. Conversely, when an appellate court reviews the denial of a Rule 59(e) motion, it will review the underlying judgment (the denial of the section 2255 motion) as well. Browder v. Director, 434 U.S. at 263 n. 7.

The second and far more compelling reason to use Rule 59(e) when possible is to avoid the AEDPA restrictions on second or successive 2255 motions. In Gonzalez v. Crosby, 545 U.S. at 532, the Supreme Court said that a Rule 60(b) motion that “attacks the federal court’s previous resolution of a claim on the merits” is really a new habeas claim, so it is treated as a second or successive filing. A Rule 60 motion won’t always be recharacterized as a second or successive section 2255 motion, such as when the Rule 60 motion “attacks, not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings,” Id., but the risk is real.

By contrast, the Supreme Court has held that a timely Rule 59(e) motion is not a second or successive habeas application. Banister v. Davis, 590 U.S. 504 (2020). Banister arose under the parallel habeas statute, 28 U.S.C. § 2244(b), but its reasoning is often applied to § 2255 cases.

Gonzalez also arose under § 2244(b), and the Court said it was deciding only that kind of case. 545 U.S. at 529 n.3. But § 2255(h) puts similar limits on second or successive motions, so expect a court to draw the same line between “merits” and “defects in the proceeding” when it reviews a Rule 60(b) motion in a § 2255 case.

Not sure whether your situation calls for reconsideration, an appeal, or both? Our overview of federal § 2255 motions at Criminal Center explains how we approach these cases from start to finish.

Common questions

Related pages

Appealing the Denial of a Section 2255 Motion

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