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Scott v. Bryant

United States District Court, E.D. Oklahoma

July 30, 2018

JASON BRYANT, Warden, Respondent.


          Ronald A. White United States District Judge

         On August 30, 2017, the Court dismissed Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 as second or successive (Dkt. 11). The Court also found the petition was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Id.[1] Petitioner subsequently filed a motion for reconsideration of the petition (Dkt. 13), alleging that “some extraordinary circumstance stood in his way” of filing a timely petition. He further claims the state court lacked jurisdiction, because his crime occurred on Indian land. He does not challenge the Court's finding that the petition was second or successive. Because Petitioner filed his motion 19 days after final judgment was entered against him, the Court construes it as a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).

         The Court may reconsider a final decision if the moving party shows “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). The Court “is vested with considerable discretion” in determining whether to grant or deny such a motion. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). Rule 59(e), however, does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. Id. “A party's failure to present its strongest case in the first instance does not entitle it to a second chance in the form of a motion to reconsider.” Cline v. S. Star Cent. Gas Pipeline, Inc., 270 F.Supp.2d 1130, 1132 (D. Kan. 2005) (citation omitted), aff'd, 191 Fed.Appx. 822 (10th Cir. 2006). Granting a motion to alter or amend is an “extraordinary remedy which is used sparingly, ” in recognition of the interests in finality and the conservation of judicial resources. Torre v. Federated Mut. Ins. Co., 906 F.Supp. 616, 619 (D. Colo. 1995), aff'd, 124 F.3d 218 (10th Cir. 1997); cf. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006) (discussing related standard under Rule 60(b)).

         In the context of a habeas corpus petition, a post-judgment motion may be considered a “second or successive” habeas petition, rather than a “true” Rule 59(e) or 60(b) motion. The distinction matters because a petitioner must obtain authorization from the appropriate Court of Appeals before a district court may hear his second or successive habeas petition. Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (citing 28 U.S.C. § 2244).

         In Spitznas, the Tenth Circuit set forth the “steps to be followed by district courts in this circuit when they are presented with a Rule 60(b) motion in a habeas . . . case.” Id., 464 F.3d at 1216. Rule 59(e) motions are subject to the same analysis. United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) (citation omitted). See also Servants of Paraclete, 204 F.3d at 1012 (“[A] motion to reconsider filed within [28] days after entry of judgment is considered a Fed.R.Civ.P. 59(e) motion.”) (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)).[2]

         The Court first must determine whether a petitioner's motion for reconsideration should be construed as a “true” [59(e)] motion or a second or successive habeas petition. Spitznas, 464 F.3d at 1216. A Rule [59(e)] motion should be treated as a second or successive § 2254 petition, “if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.” Id. at 1215 (10th Cir. 2006) (citing Gonzalez v. Crosby, 545 U.S. 524, 538 (2005)). “Thus, . . . a Rule [59(e)] motion is actually a second-or-successive petition if the success of the motion depends on a determination that the court had incorrectly ruled on the merits in the habeas proceeding.” In re Pickard, 681 F.3d 1201, 1206 (10th Cir. 2012).

Some examples of Rule [59(e)] motions that should be treated as second or successive habeas petitions because they assert or reassert a federal basis for relief from the underlying conviction include: a motion seeking to present a claim of constitutional error omitted from the movant's initial habeas petition, see Gonzales v. Crosby, 545 U.S. at 545, 530-31 (2005); a motion seeking leave to present “newly discovered evidence” in order to advance the merits of a claim previously denied, see id. at 530; or a motion “seek[ing] vindication of” a habeas claim by challenging the habeas court's previous ruling on the merits of that claim, id. at 532.
By contrast, a [59(e)] motion that challenges only the federal habeas court's ruling on procedural issues should be treated as a true [59(e)] motion rather than a successive petition. See id. at 532-33 & n. 4. Thus, for example, a motion asserting that the federal district court incorrectly dismissed a petition for failure to exhaust, procedural bar, or because of the statute of limitations constitutes a true [59(e)] motion. See id.

Spitznas, 464 F.3d at 1216-17.

         In the present case, the Court dismissed Petitioner's petition without prejudice as second or successive and as time-barred. The Court did not engage in a substantive review of any of his claims. After careful review, the Court finds Petitioner's motion presents both a “true” Rule 59(e) motion and another unauthorized second or successive habeas petition.

         Petitioner's argument that the Court erroneously found his claims were barred by the statute of limitations constitutes the “true” Rule 59(e) motion. He argues that the Court erroneously found his petition was barred by the statute of limitations, because the second amended judgment in his state criminal conviction and sentence was not filed until February 1, 2005, which was after expiration of the limitation period. This habeas petition, however, was filed on December 23, 2016 (Dkt. 1), almost twelve years after the second amended judgment and sentence allegedly was entered. Therefore, Petitioner's argument regarding the statute of limitations is meritless, and his Rule 59(e) motion must be denied.[3]

         Petitioner also presents a new habeas claim that the trial court lacked jurisdiction, which the Court finds constitutes a second or successive habeas petition. Citing Murphy v. Royal, 866 F.3d 1164 (10th Cir. (2017), modified on denial of reh'g en banc, 875 F.3d 896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026 (2018), he presents arguments related to his tribal membership and the location of his crime. He asserts he is a citizen of the Muscogee (Creek) Nation, and his crimes occurred in Indian Country, within the boundaries of the Muscogee (Creek) Nation Reservation. He argues that under Murphy, the State of Oklahoma lacked jurisdiction over his criminal proceedings, and this federal court has exclusive jurisdiction over the prosecution. He further asserts that pursuant to Murphy, the Antiterrorism and Effective Death Penalty Act of 1996 does not apply to him. Based on these allegations, he asks this Court to reverse his state court conviction.

         This second or successive habeas claim is unauthorized, because Petitioner failed to seek authorization from the Tenth Circuit to file it, pursuant to 28 U.S.C. § 2244(b)(3)(A). “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” Id. Petitioner's failure to obtain authorization is undisputed, leaving only the question of whether to dismiss the petition or, “if it is in the interest of justice, ” to transfer the amended petition to the Court of Appeals for possible authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at ...

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