*

After examining appellant’s brief and the 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) and 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent except under the doctrines of law of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.

FILED

United States Court of Appeals

Tenth Circuit

December 14, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EMERSON O. DAVIS,

Petitioner-Appellant,

v.

WARDEN, FEDERAL TRANSFER

CENTER, OKLAHOMA CITY,

Respondent-Appellee.

No. 07-6192

(D.C. No. CV-03-1671-M)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Emerson Davis, a pro se litigant currently incarcerated in the Federal

Correctional Complex in Coleman, Florida, appeals the district court’s denial of

his Rule 60(b) motion asking the court to vacate its September 23, 2004 order

dismissing his 28 U.S.C. § 2241 petition for writ of habeas corpus. Because we

agree with the district court that the motion is untimely, we affirm. 
- 2 -

* * *

A jury in the Northern District of Florida convicted Mr. Davis of

conspiracy to possess with intent to distribute cocaine, cocaine base, and

marijuana, for which the district court sentenced him to life in prison. After

appealing his conviction and seeking relief under 28 U.S.C. § 2255, both of which

were denied, Mr. Davis filed a 28 U.S.C. § 2241 petition in the Western District

of Oklahoma. Although he was convicted and is now housed in Florida, Mr.

Davis was incarcerated in the Federal Transfer Center in Oklahoma City,

Oklahoma at the time of his Section 2241 petition. The Western District of

Oklahoma was therefore the appropriate jurisdiction and venue in which to bring

the Section 2241 petition. See 28 U.S.C. § 2241(a); Howard v. U.S. Bureau of

Prisons, 487 F.3d 808, 811 (10th Cir. 2007) (explaining that a Section 2241

petition is properly filed in the district where the prisoner is confined at the time

of the filing). The district court dismissed the motion on September 23, 2004

because Mr. Davis had not established the inadequacy or ineffectiveness of 28

U.S.C. § 2255, and a panel of this court affirmed. See Davis v. Warden, No. 04-

6345, Order (10th Cir. June 14, 2005). 

On June 25, 2007, almost three years after the judgment, Mr. Davis filed

this Rule 60(b) motion, Fed. R. Civ. P. 60(b), seeking to vacate the district court’s

September 23, 2004 order dismissing his Section 2241 petition. He sought relief

under Rule 60(b)(1) and (6), which provide relief from a final order for “mistake,
- 3 -

inadvertence, surprise, or excusable neglect,” Fed. R. Civ. P. 60(b)(1), and “any

other reason that justifies relief,” Fed. R. Civ. P. 60(b)(6). In his Rule 60(b)

motion, Mr. Davis essentially argued that the district court should have addressed

his Section 2241 petition on the merits because Section 2255 relief was

inadequate or ineffective, contrary to the court’s order (as well as this court’s

order affirming the district court). The district court denied the motion, finding

that relief under 60(b)(1) was barred by the rule’s one-year statute of limitations,

and that relief under 60(b)(6) was barred because Mr. Davis did not make the

motion “within a reasonable time,” as the rule requires. D. Ct. Order at 1-2. Mr.

Davis appeals. 

* * *

We review the district court’s denial of a Rule 60(b) motion for abuse of

discretion, mindful that Rule 60(b) is extraordinary relief that may only be

granted in exceptional circumstances. Beugler v. Burlington N. & Santa Fe Ry.

Co., 490 F.3d 1224, 1229 (10th Cir. 2007). Even construing his complaint

liberally, as we must, see Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007);

Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), Mr. Davis fails to

demonstrate why the district court abused its discretion in denying his Rule 60

motion as untimely.

Rule 60(b) has dual timeliness standards: a “reasonable time” standard for

all motions filed under 60(b), and a maximum one-year statute of limitations from
- 4 -

entry of the order for motions filed under 60(b)(1), (2), or (3). See Fed. R. Civ.

P. 60(b); Cummings v. Gen. Motors Corp., 365 F.3d 944, 954 (10th Cir. 2004)

(noting “reasonable time” requirement applies to 60(b)(1), (2), and (3), and is not

necessarily satisfied by filing within one year), abrogated on other grounds by

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). The district

court entered its order denying Mr. Davis’s Section 2241 petition on

September 23, 2004, and Mr. Davis did not file his Rule 60(b)(1) and (6) motion

until June 25, 2007, a delay of two years and nine months. His 60(b)(1) motion

obviously falls short of the one-year statute of limitations, as the district court

properly concluded. 

Regarding his 60(b)(6) motion, Mr. Davis was aware of the basis for his

objection as of the day the district court entered its order. Yet he waited almost

three years to file his motion, a delay that, left unexplained, could appropriately

be considered beyond “a reasonable time.” See Sorbo v. United Parcel Serv., 432

F.3d 1169, 1178 (10th Cir. 2005) (finding no abuse of discretion in ruling that

one year between judgment and Rule 60(b) motion was not a reasonable time);

United States v. Morales-Morales, 222 Fed. Appx. 796, 796-97 (10th Cir. 2007)

(affirming ruling that one and a half years between judgment and Rule 60(b)

motion was not a reasonable time). Our cases require a party who delays in filing

a Rule 60(b) motion after discovery of the grounds for the motion to present

sufficient justification for the delay. Sorbo, 432 F.3d at 1178; Cummings, 365
- 5 -

F.3d at 955. Mr. Davis alleges that the skin diseases he contracted infected his

legal papers and required their destruction. He suggests that this explains his

delay in filing the motion, making the time elapsed reasonable. However, the

medical records attached to his brief indicate that he was infected with his skin

diseases, at the earliest, in December 2005. Thus, even if we considered his

infection and consequent loss of legal papers sufficient reason for delay, this

reason did not arise until over a year after the district court’s September 23, 2004

order, by which time his 60(b)(1) motion would already have been untimely and

his 60(b)(6) motion could be considered beyond a reasonable time. Furthermore,

Mr. Davis did not present this, or any, reason for his delay to the district court

until his motion to alter or amend, Fed. R. Civ. Proc. 59(e), after the court had

denied his Rule 60(b) motion. Rule 59 is not an appropriate vehicle “to reargue

an issue previously addressed by the court when the motion merely advances new

arguments, or supporting facts which were available at the time of the original

motion.” Servants of the Paraclete v. Does I-XVI, 204 F.3d 1005, 1012 (10th Cir.

2000). Because Mr. Davis did not timely offer the district court any justification

for his delay, we cannot conclude that the district court abused its discretion in

denying his motion as untimely.

Mr. Davis also argues that the district court incorrectly calculated the time

between its order and his motion – he submits that only one and a half years

passed because the Supreme Court did not deny certiorari on his appeal from the
1

 Mr. Davis has filed an application for certificate of appealability in this

court (“COA”), which we need not consider, as Section 2241 appeals by federal

prisoners do not require a COA. See McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 810 n.1 (10th Cir. 1997). The district court’s order denying a COA appears

to have been made under the mistaken belief that Mr. Davis is a state prisoner

with an underlying Section 2254 action, rather than a federal prisoner with an

underlying Section 2241 proceeding. 

- 6 -

district court’s order until November 2005. This calculation method is contrary to

the plain language of the rule, which starts the clock running at the time “the

judgment, order, or proceeding was entered or taken.” Fed. R. Civ. P. 60(b); see

Knight v. Knight, 228 Fed. Appx. 810, 812 (10th Cir. 2007) (acknowledging that

Rule 60(b) filing period begins to run on the date the order or judgment is issued);

Sorbo, 432 F.3d at 1178 (measuring “reasonable time” in Rule 60(b) from the

time plaintiff could have raised the objection). The district court correctly

calculated the time elapsed and did not abuse its discretion in finding the motion

untimely.1

* * *

We note that the district court granted Mr. Davis’s request to proceed in

forma pauperis, but we wish to remind Mr. Davis of his obligation to continue

making partial payments until the entire filing fee for this appeal is paid. See 28

U.S.C. § 1915(a), (b). The judgment of the district court is affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge