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Powell v. Moorehead

United States District Court, D. Colorado

October 5, 2017

TONY EDWARD POWELL, Applicant,
v.
MOOREHEAD, Warden, Respondent.

          SECOND ORDER DENYING RECONSIDERATION

          LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT.

         Applicant, 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. at 1).

         The 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.

         On July 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).

         On 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. 13).

         An 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.

         A 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.

         Rule 60(b) allows a court to grant relief from an order 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 misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged . ...

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