UNITED STATES DISTRICT COURT

FOR THE 

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No. 4:94-CR-189-02

:

v. :

:

FREDERICK R. KELSEY : (Judge Muir)

ORDER

February 10, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The majority of this order’s background is set forth in our

orders of August 9, 2001, and March 28, 2003. In the former

order we denied Frederick R. Kelsey’s motion to dismiss the

indictment for lack of jurisdiction. In the latter order we

denied Kelsey’s motion for post-conviction relief pursuant to 28

U.S.C. § 2255. Kelsey appealed the former order without success. 

Kelsey litigated his § 2255 motion pro se and in forma pauperis. 

His attempt to appeal the denial of that motion ended when the

Court of Appeals for the Third Circuit refused to grant his

application for a certificate of appealability. 

On February 3, 2006, Kelsey filed a motion for relief

pursuant to Federal Rule of Civil Procedure 60(b)(6). In that

motion Kelsey contends that our March 28, 2003, order “is based

on an incorrect or erroneous interpretation of the law” and that

we “overlook[ed]” one of his claims.” (Motion Under 60(b)(6), pp.

1, 2) We will rule on the motion without requiring the parties

to file any briefs because we have all of the information

Case 4:94-cr-00189-MM Document 396 Filed 02/10/06 Page 1 of 4
2

necessary to consider the motion.

Federal Rule of Civil Procedure 60 is entitled “Relief From

Judgment or Order.” Subdivision (b) of the Rule is entitled

“Mistakes, Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud; Etc.,” and it sets forth the following six

grounds for obtaining relief:

(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 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 have prospective application; or

(6) any other reason justifying relief from the operation of

the judgment.

Fed.R.Civ.P. 60(b).

As a threshold matter, we seriously doubt that any of the

arguments raised in Kelsey’s Rule 60(b) motion are within the

scope of the Rule. Kelsey’s contentions are more akin to those

raised in a motion for reconsideration or a successive § 2255

motion, and they should have been raised in such a motion. One

reason to deny Kelsey’s Rule 60(b) motion is that it constitutes

an inappropriate attempt to avert the procedural requirements

imposed in connection with such motions. Even if Kelsey’s

arguments could be construed as being within the scope of Rule

60(b)(6), none of his contentions justifies relief from the

operation of our March 28, 2003, order. However, that is not the

Case 4:94-cr-00189-MM Document 396 Filed 02/10/06 Page 2 of 4
3

only reason to deny Kelsey’s motion.

Rule 60(b) expressly provides that “[t]he motion shall be

made within a reasonable time, and for reasons (1), (2), and (3)

not more than one year after the judgment, order, or proceeding

was entered or taken.” Fed.R.Civ.P. 60(b). The order at issue in

Kelsey’s pending motion was entered on March 28, 2003, or

approximately 3 years ago. To the extent that his arguments are

addressed by the first, second, or third reasons set forth in

Rule 60(b), the motion is untimely because it has been filed more

than one year after entry of the order. To the extent that his

contentions are covered by the sixth ground referenced in Rule

60(b), we are of the view that the motion is untimely because it

has not been filed within a reasonable time.

We will deny Kelsey’s motion for relief pursuant to Rule

60(b)(6). 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Kelsey’s motion (Document 395) filed pursuant to Rule

60(b)(6) is denied.

2. Any appeal from this order will be deemed lacking a

substantial showing of the denial of a constitutional

right and, therefore, a certificate of appealability

Case 4:94-cr-00189-MM Document 396 Filed 02/10/06 Page 3 of 4
4

will not be issued.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga 

Case 4:94-cr-00189-MM Document 396 Filed 02/10/06 Page 4 of 4