Stewart v. Pererz et al

Filing 6

ORDER denying 5 Motion for Reconsideration. ORDERED that the Motion to econsider the Court Motion 9-28-12 as a 2241 - 1997(e) 5 which the Court construes liberally as a motion for relief from the judgment pursuant to Fed. R. Civ. P. 60(b), is DENIED, by Judge Lewis T. Babcock on 4/22/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02539-LTB
MARSHAUN STEWART,
Applicant,
v.
CHRISTOPHER PEREZ, Supervisor [sic], Probation Service, and
GARRETT, Probation Officer,
Respondents.

ORDER DENYING MOTION FOR RECONSIDERATION

Applicant, Marshaun Stewart, filed pro se a “Motion to Reconsider the Court
Motion 9-28-12 as a 2241 - 1997(e)” (Doc. # 5), on April 8, 2013. Mr. Stewart asks the
Court to reconsider the September 28, 2012 Order of Dismissal. The Court must
construe Mr. Stewart’s filings liberally because he is a pro se litigant. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). The Court thus will construe Mr. Stewart’s motion liberally as a motion for
reconsideration. The motion will be denied for the reasons stated below.
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). Mr. Stewart filed the motion for reconsideration more than twenty-eight
days after the Order of Dismissal and the Judgment were entered in the instant action.

The Court, therefore, finds that the motion for reconsideration is filed pursuant to Rule
60(b). Id.; see also Fed. R. Civ. P. 59(e).
Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional
circumstances.” See Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (internal quotations and citations omitted). The grounds justifying relief from a
final judgment are set forth in Fed. R. Civ. P. 60(b). After review of the motion for
reconsideration and the entire file, the Court concludes that Mr. Stewart fails to
demonstrate that any ground justifying relief from the judgment exists in his case.
Mr. Stewart filed an Application for Habeas Corpus Relief Pursuant to 28 U.S.C.
§ 2241. He alleged in the application that in August 2010 he was convicted in the
United States District Court for the Northern District of Mississippi for knowingly failing
to register as a sex offender in violation of 18 U.S.C. § 2250. Applicant further asserted
that probation officers in Colorado have denied him the opportunity to participate in a
release program pursuant to which he would be relocated to Denver, Colorado, to live
with his fiancé. Mr. Stewart has been confined at USP-Atwater, California, during all
times relevant.
In the dismissal order, the Court determined that to the extent that Mr. Stewart
was attacking the execution of his sentence pursuant to 28 U.S.C. § 2241, the Court
lacked jurisdiction over his claims because a § 2241 application “must be filed in the
district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). The Court further found that to the extent Mr. Stewart challenged the validity of
his conviction or sentence, he must file a Motion to Vacate, Set Aside, or Correct

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Sentence Pursuant to 28 U.S.C. § 2255 in the sentencing court–the United States
District Court for the Northern District of Mississippi. Id.
In his motion for reconsideration, Mr. Stewart simply repeats his request that he
be relocated to Denver, Colorado, and sets forth the steps that he has taken to comply
with statutory requirements and to exhaust his administrative remedies. Mr. Stewart
has not provided the Court with any factual information to indicate that a § 2241
Application is properly filed in the District of Colorado when he remains incarcerated in
California. Mr. Stewart has therefore failed to demonstrate exceptional circumstances
that would warrant relief from the September 28, 2012 dismissal order. See Servants of
the Paraclete, 204 F.3d at 1009. Accordingly, it is
ORDERED that the “Motion to Reconsider the Court Motion 9-28-12 as a 2241 1997(e)” (Doc. # 5), filed on April 8, 2013, which the Court construes liberally as a
motion for relief from the judgment pursuant to Fed. R. Civ. P. 60(b), is DENIED.
Dated at Denver, Colorado this 22nd

day of

April

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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