The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH D. WHITE,
Petitioner,
v. Case No. 22-CV-00546-SPM
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Before the Court is a Motion for Reconsideration (Doc. 32) filed by Petitioner
Kenneth D. White, an inmate incarcerated at the Forrest City Low Federal
Correctional Institution in Forrest City, Arkansas. White’s Motion requests to reopen
proceedings relating to his Amended Motion to Attack, Set Aside, or Vacate Sentence
filed pursuant to 28 U.S.C. § 2255. (Doc. 9). The Court dismissed White’s Amended
Motion with prejudice on January 25, 2024. (See Docs. 30, 31). White filed the instant
Motion on February 5, 2024. (See Doc. 32).
In this new filing, White again argues that his counsel was ineffective for
failing to argue various defense strategies; that the jury should have received
instructions on the entrapment by estoppel defense; and that sting operations like
that which led to his arrest and conviction are “legal racketeering.” (Doc. 32, p. 13;
see generally id.). White asserts that he is bringing the instant Motion pursuant to
Federal Rule of Civil Procedure 59(e). (See id., p. 1). He asks for this Court to permit
him a “third shot” at making his argument and argues that his case should be allowed
to continue. (Id.).
First, Rule 59(e) covers relief from a trial and/or a judgment and is inapplicable
in a motion brought pursuant to 28 U.S.C. § 2255. Even considering his Motion under
Rule 60 (which permits relief from orders and from judgments), White’s Motion
merely reiterates and repackages his previous requests for relief. Critically, “Rule
60(b) relief is an extraordinary remedy and is granted only in exceptional
circumstances.” Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994) (quoting Dickerson
v. Board of Educ., 32 F.3d 1114 (7th Cir. 1994)); see Gonzalez-Koeneke v. West, 791
F.3d 801, 807 (7th Cir. 2015) (quoting Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.
2008)). Federal Rule of Civil Procedure 60(b) states that a party may seek relief from
a judgment for one or more of the following reasons: (1) “mistake, inadvertence,
surprise, or excusable neglect”; (2) “newly discovered evidence”; (3) “fraud”; (4) “the
judgment is void”; (5) “the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable”; or (6) “any other reason that justifies relief.”
White does not claim that new evidence has been discovered which was not known at
the time of his earlier petitions. Moreover, there is no reason why any of his
arguments could not have been raised in prior filings, meaning that they are
procedurally defaulted. Thus, because his Motion for Reconsideration is simply a
rehash of previously delivered arguments, he has not met the high standard for relief
under Rule 60.
Additionally, because White employs this Motion to reargue the claims
previously alleged in his Amended Motion (Doc. 9); his Supplement (Doc. 18); and his
Response to the Government’s Response to his § 2255 Motion (Doc. 21), the Court
considers the instant Motion as a successive motion filed pursuant to 28 U.S.C. §
2255. Rule 9 of the Rules Governing Section 2255 Proceedings for the United States
District Courts is clear that an order from the cognizant Court of Appeals is required
for the District Court to consider a successive § 2255 motion brought on claims which
were already decided on the merits (as here). Thus, the District Court is without
jurisdiction to consider the instant Motion. Should White wish to appeal this Court’s
ruling, he must seek a certificate of appealability from the Seventh Circuit. Similarly,
should he wish to file a successive § 2255 Motion, he must also obtain certification
from the Seventh Circuit.
Therefore, for the reasons set forth above, Kenneth D. White’s Motion for
Reconsideration (Doc. 32) is DENIED.
IT IS SO ORDERED.
DATED: February 27, 2024
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge