United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
Court has ordered an evidentiary hearing on whether
Petitioner can show cause and prejudice to overcome a state
procedural bar of his first claim for habeas relief.
Respondent has asked the Court to reconsider its order, or in
the alternative, certify the order for interlocutory appeal.
Having reviewed the parties' submissions, the Court
denies both requests.
“The Federal Rules of Civil Procedure do not recognize
a ‘motion to reconsider.'” Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir.1991);
see also Warren v. American Bankers Ins., 507 F.3d
1239, 1243 (10th Cir. 2007). However, a district court has
inherent power to revise interlocutory orders at any time
before the entry of a final judgment. See Warren,
507 F.3d at 1243; Riggs v. Scrivner, Inc., 927 F.2d
1146, 1148 (10th Cir. 1991). The appropriate circumstances
for seeking reconsideration of issues previously decided in a
case are limited:
Grounds warranting a motion to reconsider include (1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Thus, a motion for
reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law. It is not appropriate to revisit issues
already addressed or advance arguments that could have been
raised in prior briefing.
Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citations omitted); see also Van
Skiver, 952 F.2d at 1243; Devon Energy Prod. Co.,
L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d
1195, 1212 (10th Cir. 2012).
position appears to be that the Court misapprehended
controlling law. Respondent advances six legal arguments
related to the Court's order.
Cause will not overcome the Oklahoma Court of Criminal
Appeals' procedural bar.
argues that even if Petitioner can establish cause for not
raising his jury claim, that evidence would still not satisfy
the Oklahoma Court of Criminal Appeals'
(“OCCA”) pleading requirements.
Court takes no position on whether the “cause”
Petitioner has presented to overcome the procedural bar would
be sufficient to meet the OCCA's pleading requirements
for a successive post-conviction application. That inquiry
has no bearing on whether a federal court will apply a state
procedural bar. It is not the province of a federal court to
second-guess whether a state court properly barred a claim.
See Runningeagle v. Ryan, 686 F.3d 758, 768 (9th
Cir. 2012) ([w]e would not be able to review the state
court's conclusion that this claim was procedurally
defaulted under [state] law”); Jacquin v.
Stenzil, 886 F.2d 506, 508 (2d. Cir. 1989) (the merits
of a particular state procedural bar are not the concern of a
federal court presented with a habeas corpus petition).
Rather, federal courts must determine, applying federal law,
whether a petitioner can establish cause and prejudice to
obtain review of a defaulted claim. See Murray v.
Carrier, 477 U.S. 478, 489 (1986) (the question of cause
for avoiding procedural default is a question of federal
law); see also Simpson v. Carpenter, 912 F.3d 542,
571 (10th Cir. 2018).
while Respondent claims Petitioner failed to comply with the
OCCA's pleading requirements, the Court will not review
the OCCA's decision on that point of state law. Nor will
the Court attempt to divine whether the OCCA's procedural
default rested on a state pleading requirement or a
substantive a finding that the claim was reasonably
available. What matters is that the OCCA procedurally
defaulted the claim. This Court must therefore determine
whether Petitioner can show cause and prejudice under federal
law for this Court to review the claim in spite of that
Petitioner's lack of diligence precludes the Court from
hearing evidence on the merits of his claim.
claims that if the Court holds an evidentiary hearing on
cause and prejudice, it cannot consider any evidence from
that hearing in deciding the underlying claim. Respondent
bases this argument on the requirement that a habeas
petitioner be diligent in developing the factual bases for
claims in state court. The Court agrees that a petitioner
must show diligence in attempting to develop the factual
bases for a claim in state court. Title 28 U.S.C. §
2254(e)(2) requires that a petitioner attempt to develop
factual evidence in state proceedings, even for claims that a
federal court later reviews de novo. See Cullen
v. Pinholster, 563 U.S. 170, 185-86 (2011). But the
Court finds Petitioner was diligent in developing the factual
basis of his claim.
2254(e)(2) states that “[i]f the applicant has failed
to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing
on the claim” unless he can fulfill the requirements of
Section 2254(e)(2). The Supreme Court has construed the term
“failed” to indicate a “lack of diligence,
or some greater fault, attributable to the prisoner or the
prisoner's counsel.” Williams v. Taylor,
529 U.S. 420, 431-32 (2000). The Tenth Circuit has found that
when a petitioner seeks an evidentiary hearing in state court
and submits affidavits and a memorandum of law in favor of
his request, he has been diligent under Section 2254(e)(2).
Parker v. Scott, 394 F.3d 1302, 1324-25 (10th Cir.
2005); compare Calvert v. Dinwiddie, 461 Fed.Appx.
729, 736 n.1 (10th Cir. 2012) (petitioner was not diligent
when he never sought an evidentiary hearing in state court,
did not submit documentary ...