Cox v. Federal Bureau of Prisons et al

Filing 9

ORDER ENTERED: Petitioner's motion 8 for reconsideration is denied. Signed by Senior District Judge Richard D. Rogers on 7/13/2011. (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. By an order dated June 21, 2011,
the court dismissed the petition without prejudice, based upon
petitioner’s admitted failure to exhaust administrative remedies.
Before the court is petitioner’s MOTION TO REMAND DISTRICT
COURT ORDER, which was docketed as a motion for reconsideration.
To the extent petitioner’s pleading can be liberally construed
as seeking reconsideration through a motion to alter or amend the
judgment entered in this matter,1 Fed.R.Civ.P. 59(e), said motion is
denied.
Grounds that might warrant such relief include “(1) an
intervening

1

change

in

the

controlling

law,

(2)

new

evidence

The caption in petitioner’s pleading ambiguously references
both the instant district court case number and the “Tenth Circuit
Court of Appeals in Topeka.”
To the extent petitioner may be
attempting to appeal the judgment entered in this matter on June 21,
2011, he should file a notice of appeal in this court, and either
pay the $455.00 appellate filing fee or submit a motion for leave to
proceed in forma pauperis on appeal.

previously unavailable, and (3) the need to correct clear error or
prevent manifest injustice."

Servants of Paraclete v. Does, 204

F.3d 1005, 1012 (10th Cir.2000). While a motion for reconsideration
is appropriate where the court has misapprehended the facts, a
party's position, or the controlling law, it is not appropriate to
revisit issues already addressed or advance arguments that could
have been raised in prior briefing.

Id.

Having reviewed the motion, the court finds no reason to alter
or

amend

its

decision

to

dismiss

the

petition

based

upon

petitioner’s failure to pursue and exhaust administrative remedies.
Although

petitioner

reasserts

his

position

that

exhaustion

of

administrative remedies is not required, he mistakenly relies on
case holdings concerning a prisoner’s exhaustion of administrative
remedies in a non-habeas civil action.

Because the court does not

believe it has misapprehended the facts, the position taken by
petitioner, or the relevant case law, petitioner’s motion is denied.
IT

IS

THEREFORE

ORDERED

that

petitioner’s

motion

reconsideration (Doc. 8) is denied.
DATED:

This 13th day of July 2011, at Topeka, Kansas.

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

2

for