*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

CONRAD J. BRAUN,

Petitioner-Appellant,

v.

ROBERT D. HANNIGAN; ROBERT

T. STEPHAN,

Respondents-Appellees.

No. 98-3092

(D. Kan.)

(D.Ct. No. 93-3256-GTV)

____________________________

ORDER AND JUDGMENT*

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.
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Mr. Braun, a pro se litigant, is appealing the denial of his motion to

reconsider. We deny Mr. Braun a certificate of probable cause and dismiss the

appeal.

In 1993, Mr. Braun filed his pro se 28 U.S.C. § 2254 habeas action. He

challenged a parole condition restricting him from contact with his ex-wife and

sons, rather than attacking his underlying conviction. Following Appellees’

responses, Mr. Braun filed a motion to dismiss his petition without prejudice. 

The district court granted his motion stating in part:

The court concludes that dismissing plaintiff’s case will not

unfairly prejudice defendants. Defendants have put relatively little

time and effort into this case. Although this case has haunted the

court for almost three years, defendants have filed only three

substantive documents. Furthermore, in their response to plaintiff’s

motion to dismiss, defendants provided the court with no evidence or

suggestion that they would face unfair prejudice upon dismissal of

the case.

Mr. Braun then filed a motion asking the court to rule on the merits “in the

above titled action.” The district court treated this as a motion to alter or amend

the judgment of dismissal without prejudice and denied the motion. In denying

this motion, the trial court stated, in part:

Plaintiff has offered no reason for the court to alter [or] amend

its judgment. The court has reviewed both plaintiff’s motion to

dismiss without prejudice and the court’s March 12, 1998 order and

finds no manifest errors of law or fact. Furthermore, plaintiff does
-3-

not provide any newly discovered facts that the court should

consider.

Mr. Braun now appeals the denial of his motion arguing:

1. An order procedurally barred by Rule 41 necessarily

constitutes a manifest error of law. Failure to alter or correct

judgment pursuant to Rule 59(e) or Rule 60 (b) constitutes an abuse

of discretion.

2. A prisoner cannot induce or invite an error that is

procedurally barred. Courts are to protect constitutional rights.

3. The legal principle of finality of judgment bars dismissal

without prejudice.

The district court properly treated Mr. Braun’s motion as a Fed. R. Civ. P.

60(b) motion as Mr. Braun requested relief from the very Order of Dismissal he

previously requested and the district court granted. We usually review a district

court’s decision to grant or deny a Rule 60(b) motion for abuse of discretion. See

State Bank of S. Utah v. Gledhill (In re Gledhill), 76 F.3d 1070, 1080 (10th Cir.

1996). It should also be kept in mind that an appeal from a denial of a Rule 60(b)

motion normally raises for review only the district court’s order of denial and not

the underlying judgment itself. See Van Skiver v. United States, 952 F.2d 1241,

1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).

Mr. Braun fails to make a substantial showing of the denial of an important
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federal right, warranting a certificate of probable cause. See Smith, 50 F.3d at

821 (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). We therefore dismiss

the appeal.

Were we to reach the merits of this case, we would be unable to conclude

the district court abused its discretion in granting Mr. Braun’s own motion to

dismiss his complaint without prejudice, and we would necessarily affirm for

substantially the same reasons set forth in the district court’s Order granting Mr.

Braun’s motion to dismiss without prejudice entered March 13, 1998, and in its

Order denying his motion to render judgment on the merits entered April 23,

1998. Copies of both orders are attached hereto.

Mr. Braun has also filed herein a motion entitled “Motion for Court to

Order Bureau of Prisons to Release Prisoner From Segregated or Disciplinary

Custody, Provide Adequate Access to Law Library to Address Imminent Court

Pleadings, and Provide Postage and Copies as was Policy and Custom Before

Retaliatory Transfer to FCI - Texarkana.” We quote in part from this motion,

simply to show the allegations mentioned therein arose after this appeal was filed. 

Mr. Braun alleges in his motion, in relevant part:

On June 19, 1998 the prisoner was arrested by BOP at the law

library while attempting to prepare for the above titled habeas case
-5-

98-3092, a five-year old case that is also central to this prisoner’s $1

billion interference with administration of justice claim in federal

court and retaliation claim case no. 98-6180.

We decline to accept jurisdiction of this matter as the issues raised were not

presented to the district court and we therefore deny this motion. See Singleton v.

Wulff, 428 U.S. 106, 120-21 (1976).

The mandate shall issue forthwith.

Entered by the Court:

WADE BRORBY

United States Circuit Judge
Attachments not available electronically.