This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

December 26, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID A. WILLIAMS,

Plaintiff - Appellant,

v.

18TH JUDICIAL DISTRICT OF

KANSAS; STATE OF KANSAS;

SEDGWICK COUNTY; NOLA T.

FOULSTON, Sedgwick County

District Attorney; KEVIN

O’CONNOR, Sedgwick County

Assistant District Attorney,

Defendants - Appellees.

No. 06-3363

(D.C. No. 03-CV-3421-SAC)

(D. Kan.)

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and LUCERO, Circuit Judges.**

David A. Williams, a state inmate appearing pro se, appeals from the

district court’s denial of his motion for relief from judgment pursuant to Fed. R.
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Civ. P. 60(b). Mr. Williams sought relief from a judgment of the district court

dismissing his civil rights complaint brought pursuant to 42 U.S.C. § 1983. In

2003, the district court liberally construed that complaint to allege violations of

Mr. Williams’s federal rights by the judge and district attorney who participated

in his state criminal trial. The district court determined that, in essence, Mr.

Williams was challenging the voluntariness of his plea agreement and requesting

that the district court vacate his state criminal sentence and allow for either new

plea negotiations or a trial. Because the relief Mr. Williams sought sounded in

habeas corpus, and not § 1983, the district court dismissed the complaint for

failure to state a claim. Mr. Williams did not appeal that decision. Mr.

Williams’s motion for relief from judgment now requests reinstatement of that

matter on grounds that Mr. Williams could prove his claims if given the

opportunity.

We review a district court’s ruling on a motion for relief from judgment for

an abuse of discretion. Sorbo v. United States Parcel Service, 432 F.3d 1169,

1177 (10th Cir. 2005). According to Rule 60(b), a motion for relief from

judgment “shall be made within a reasonable time.” Fed. R. Civ. P. 60(b). 

Moreover, such a motion may only be granted for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (4) the
 In its order, the district court also denied two motions for relief filed by 1

Mr. Williams on the grounds that the relief sounded in habeas corpus, and that the

prosecutors were protected by absolute immunity. To the extent Mr. Williams

challenges that portion of the district court’s order on appeal, we affirm for

substantially the same reasons set forth by the district court. 

- 3 -

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment. 

Id. Because Mr. Williams has offered no explanation for the two-year lapse

between the district court’s order dismissing his § 1983 action and his motion for

relief from judgment, and has not otherwise shown that his case falls into one of

the six narrow categories under which relief from judgment is appropriate, the

district court did not abuse its discretion in denying his Rule 60(b) motion. 

1

Mr. Williams’s appeal is “without merit in that it lacks an arguable basis in

either law or fact.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002).

We DENY Mr. Williams’s motion to proceed IFP under § 1915(a)(1) and

DISMISS this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Mr. Williams is

responsible for the immediate payment of the unpaid balance of the appellate

filing fee. The dismissal of this appeal counts as one strike pursuant to 28 U.S.C.

§ 1915(g). See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 
- 4 -

780 (10th Cir. 1999).

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge