Cole v Phillips

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DEMARCUS KEYON COLE, 	)
)
Petitioner, 	)
)
v. 	) 	No. 1:24-cv-01189-STA-jay
)
SHAWN PHILLIPS, 	)
)
Respondent. 	)
ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT (ECF NO. 94)
The United States Court of Appeals for the Sixth Circuit granted Petitioner Demarcus
Keyon Cole authorization to file a second or successive petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 raising claims that the prosecution coerced Kyneshia Williams into
testifying against Cole and withheld evidence that LeGraine Poston was seeking leniency on
pending charges against him. (ECF No. 1-1 at PageID 65.) Cole, through counsel, filed a second
or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 20 (the
“Second § 2254 Petition”).) On August 19, 2026, the Court denied the Second § 2254 Petition,
denied any pending motions as moot, and denied a certificate of appealability. (ECF No. 89.) The
Court entered judgment the same day. (ECF No. 90.)
Cole has appealed the Court’s judgment. 	(ECF No. 91.) He recently filed a motion for
relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No.
94.) Cole argues that: (1) he discovered two documents missing from the state court record that
were overlooked by the Court; and (2) the judgment is void because he was deprived of the
opportunity to be heard because former attorney Anne Tipton did not consult him before filing the
Second § 2254 Petition. (Id. at PageID 2366-67.)
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2
“A Rule 60(b) motion is neither a substitute for, nor a supplement to, an appeal.” GenCorp,
Inc. v. Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007). Because Cole’s appeal is pending before
the United States Court of Appeals for the Sixth Circuit, he can raise his two arguments for relief
there. For that reason, the motion for relief from judgment (ECF No. 94) is DENIED.
IT IS SO ORDERED this 8th day of October, 2026.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
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