Cox v. Federal Bureau of Prisons et al

Filing 11

ORDER ENTERED: Petitioner's motion 10 for reconsideration is denied. Signed by Senior District Judge Richard D. Rogers on 1/5/2012. (Mailed to pro se party Welby Thomas Cox by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WELBY THOMAS COX,
Petitioner,
v.

CASE NO. 11-3017-RDR

FEDERAL BUREAU OF PRISONS, et al.,
Respondents.

O R D E R
Petitioner filed this pro se action seeking federal habeas
corpus relief under 28 U.S.C. § 2241 on allegations of error in the
execution of his federal sentence. The court dismissed the petition
without prejudice on June 21, 2011, based upon petitioner’s admitted
failure to exhaust administrative remedies.
Petitioner thereafter filed a motion titled as a MOTION TO
REMAND DISTRICT COURT ORDER, which was docketed as a motion for
reconsideration.

The court construed the motion as a timely filed

motion seeking relief under Rule 59(e), and denied the motion on
July 13, 2011.

Petitioner filed no appeal.

Instead, petitioner filed a MOTION TO RECONSIDER on July 19,
2011, alleging error by the court in dismissing the petition without
prejudice, and in construing and/or denying petitioner’s MOTION TO
REMAND.
“Parties seeking reconsideration of dispositive orders or
judgments must file a motion pursuant to Fed.R.Civ.P. 59(e) or
60(b).”

D.Kan. Rule 7.3.

Having reviewed the instant pro se

motion, the court considers it as seeking relief under Rule 60(b)

from the judgment entered in this matter.
A Rule 60(b) motion should be granted only in exceptional
circumstances.

ClearOne Communications, Inc. v. Bowers, 643 F.3d

735, 754 (10th Cir.2011).

Rule 60(b) is not a vehicle to rehash or

restate arguments previously addressed or to present new legal
theories or supporting facts that could have been included in
earlier filings.

Wilkins v. Packerware Corp., 238 F.R.D. 256, 263

(D.Kan.2006), aff'd 260 Fed.Appx. 98 (10th Cir.2008)(citing Brown v.
Presbyterian

Healthcare

Services,

101

F.3d

1324,

1332

(10th

Cir.1996)); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir.2000).
Cashner

v.

Cir.1996).

Nor is it to be used as a substitute for appeal.
Freedom

Stores,

Inc.,

98

F.3d

572,

576–77

Id.;
(10th

A party seeking relief from a judgment bears the burden

of demonstrating that he satisfies the prerequisites for such
relief. Van Skiver v. U.S., 952 F.2d 1241, 1243–44 (10th Cir.1991),
cert. denied, 506 U.S. 828 (1992).

“A litigant shows exceptional

circumstances by satisfying one or more of Rule 60(b)'s six grounds
for relief from judgment.”1 Id. at 1244; Cashner 98 F.3d at 576–77.
Having

reviewed

petitioner’s

motion,

the

court

finds

no

showing, either by petitioner or on the face of the record, for

1

Rule 60(b) provides in pertinent part that the court may
relieve a party from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud ... misrepresentation, or other
misconduct by an opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, it is
based on an earlier judgment that has been reversed or vacated,
or applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
Fed.R.Civ.P. 60(b).
2

granting the extraordinary relief provided under Rule 60(b).
IT

IS

THEREFORE

ORDERED

that

petitioner’s

motion

reconsideration (Doc. 10) is denied.
DATED:

This 5th day of January 2012, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

3

for