United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
Deshane Gantt has filed a Motion to Amend Judgment under
Fed.R.Civ.P. 59(e) and a Request for the District Court to
Find the Facts Specially and State the Conclusions of Law
Separately under Fed.R.Civ.P. 52(a)(1) (Doc. 101) . He also
seeks an evidentiary hearing (Doc. 111). For the following
reasons, the Court denies Petitioner's motions.
Factual and Procedural Background
November 9, 2010, Petitioner was charged with one count of
bank robbery in violation of 18 U.S.C. § 2113(a) and (d)
(Count I) and one count of carrying, using, and brandishing a
firearm during and relating to the bank robbery in violation
of 18 U.S.C. § 924(c)(1) (Count II). On January 24,
2011, Petitioner pled guilty to the second count. In his
written plea agreement, he admitted that he entered a federal
credit union, armed with a 9 mm Highpoint pistol, and ordered
several employees to the floor. He removed cash,
approximately $7, 800, from the teller drawers and fled the
building. On April 25, 2011, the Court sentenced Petitioner
to a term of 20 years.
2, 2011, Petitioner appealed his conviction and sentence to
the Tenth Circuit Court of Appeals. He argued that the
district court's sentence was both procedurally and
substantively unreasonable. The Tenth Circuit affirmed the
Court's decision in a decision dated May 30, 2012. In
that opinion, the Tenth Circuit stated that
“Defendant's sentence was procedurally reasonable
because the district court adequately explained why it varied
from the guideline sentence, and it was substantively
reasonable because the length of the sentence was not an
abuse of discretion.”
November 1, 2013, Petitioner filed a Motion to Vacate under
28 U.S.C. § 2255. In this motion, Petitioner, proceeding
pro se, argued multiple grounds of error including (1) that
the district court was without subject matter jurisdiction,
(2) that the district judge abused his discretion, (3)
prosecutorial misconduct, and (4) ineffective assistance of
counsel. On November 22, 2013, the district court found
Petitioner's arguments to be without merit and thus
denied Petitioner's motion. Petitioner appealed the order
to the Tenth Circuit. On April 8, 2014, the Tenth Circuit
dismissed the appeal for lack of prosecution.
three years later, on July 19, 2017, Petitioner filed a
Motion for Reconsideration. He stated that he brought the
motion pursuant to Fed.R.Civ.P. 60(b)(5) and (6). He claimed
that he had a number of substantive ineffective assistance
claims that were not properly raised in his first § 2255
motion. The Court denied the Rule 60(b) motion finding that
Petitioner brought an improper successive § 2255 motion.
Thus, the Court dismissed Petitioner's motion for lack of
is now before the Court again. He seeks relief from the
denial of his Rule 60(b) motion under Fed.R.Civ.P. 59(e). He
claims that the Court committed clear error.
59(e) of the Federal Rules of Civil Procedure permits a party
to request reconsideration of a final judgment. The Court
will reconsider an earlier judgment if the movant presents
evidence of (1) an intervening change in the controlling law,
(2) newly discovered evidence, or (3) the need to correct
clear error. Rule 59(e) is not an appropriate vehicle
for revisiting issues already considered or arguing matters
that were not raised in prior briefs.
contends that the Court committed clear error because it
misapprehended his argument in his previous 60(b) motion. He
states that he filed a true 60(b) motion in this Court
because he presented a claim that a defect occurred in his
initial § 2255 proceeding. Petitioner asserts that the
Court instead construed his argument to be that he had a
Sixth Amendment right to counsel in his initial 2255
proceedings. Petitioner is mistaken.
Court previously considered whether Petitioner established a
defect in the integrity of the federal habeas proceeding. The
Court cited the Tenth Circuit's standard when determining
whether Petitioner's motion was a true 60(b) motion or a
[A] 60(b) motion is a second or successive petition if it in
substance or effect asserts or reasserts a federal basis for
relief from the petitioner's underlying conviction.
Conversely, it is a “true” 60(b) motion if it
either (1) challenges only a procedural ruling of the habeas
court which precluded a merits determination of the habeas
application, or (2) challenges a defect in the integrity of
the federal habeas proceeding, provided that such a ...