United States District Court, D. Colorado
SECOND ORDER DENYING RECONSIDERATION
T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Tony Edward Powell, is in the custody of the Bureau of
Prisons, currently incarcerated at the United States
Penitentiary Florence High. On September 21, 2017, Applicant
filed a “Petition for More Definite Statement, And Or
Clarity, ” (ECF No. 14), in “hopes of tribunal
redress of the court's final decision, ” regarding
the Court order, dated September 6, 2017, denying his motion
for reconsideration filed August 18, 2017, (see Id.
Court must liberally construe Applicant's filings because
he is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. The
“Petition for More Definite Statement, And Or Clarity,
” will be liberally construed as a motion for
reconsideration and will be denied.
26, 2017, the Court denied Applicant's § 2241 Habeas
Application and dismissed the action because Mr. Powell has
an adequate and effective remedy pursuant to 28 U.S.C. §
2255 in the United States District Court for the Western
District of Texas. (See ECF No. 10). Judgment
entered the same day. (ECF No. 11). The reasons for the
dismissal are explained in detail in the July 26, 2017, Order
of Dismissal. (ECF No. 10).
August 18, 2017, Applicant submitted pro se a
“Petition for Order and Directives Granting Leave
Reconsidering the Court's Order and Judgement [sic] On
[sic] the Alternative, Petition to Show Cause, ”
seeking reconsideration of the Court's order of
dismissal. (ECF No. 12). The Court denied Applicant's
Motion for Reconsideration on September 6, 2017. (ECF No.
order denying a motion to reconsider, such as the order this
Court entered on September 6, 2017, is not a new opportunity
for a litigant to file yet another motion to reconsider. The
instant motion to reconsider filed on September 21, 2017,
will be denied for the following reasons, as well as the
reasons articulated in the September 6 order.
litigant subject to an adverse judgment, 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). A motion to alter or amend the
judgment must be filed within twenty-eight days after the
judgment is entered. See Fed. R. Civ. P. 59(e). A
motion to reconsider filed more than twenty-eight days after
the final judgment in an action should be considered filed
pursuant to Rule 60(b). See Van Skiver, 952 F.2d at
1243 (stating that a motion to reconsider should be construed
as filed pursuant to Rule 59(e) when it is filed within the
limit set forth under Rule 59(e)). In this case,
Applicant's Motion was filed on September 21, 2017,
fifty-seven days after a Final Judgment was entered
dismissing this action on July 26, 2017. Therefore, the
motion will be considered filed pursuant to Rule 60(b).
See Van Skiver, 952 F.2d at 1243.
60(b) allows a court to grant relief from an order for the
(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 misconduct by an
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged .