United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
September 27, 2018, Petitioner’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 was denied as
barred by the statute of limitations. (Dkt. 12, 13). He also
was denied a certificate of appealability. (Dkt. 12). On
October 11, 2018, Petitioner filed a motion for
reconsideration of the Court’s decision, pointing out
various alleged errors and omissions in the Court’s
Opinion and Order. (Dkt. 14). The Court construes
Petitioner’s motion as a motion pursuant to
59(e) motion may be granted “to correct manifest errors
of law or to present newly discovered evidence.”
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997) (internal quotation marks omitted). Relief under Rule
59(e) also is appropriate when “the court has
misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A Rule 59(e)
motion, however, is not a new opportunity to revisit issues
already addressed or to advance arguments that could have
been raised earlier. Id.
entered a guilty plea to the charge of First Degree Murder in
Tulsa County District Court No. CF-1993-1331, and he was
sentenced to life with the possibility of parole. He claims
the State breached the plea agreement by changing parole
policies after the plea was entered, thereby making his
change of parole virtually non-existent.
argues the Court failed to consider the following:
Court stated his next scheduled parole consideration is set
for December 1, 2019, however, parole consideration does not
mean he has an actual chance of being paroled.
Court stated that when Petitioner was considered for parole
in another case in July 1994 and September 1995, the
victim’s brother and father both protested the granting
of parole. Petitioner asserts there is no evidence he had any
knowledge of the 1994 and 1995 protests, and he was not
actually aware of the protests. He, however, fails to explain
when he became aware of the fact that family members could
protest, and he has not shown that this policy actually
affected him after 1995. He also does not acknowledge the
Court’s finding that he was aware of the factual
predicate of his claim by December 2013 .
acknowledges he was aware in 1994 and 1995 that the district
attorney could provide some input at parole considerations,
and his prison work record and accomplishments could be
considered by the Pardon and Parole Board. The district
attorney’s role, however, has been greatly expanded
since the plea agreement, and the parole changes only allow
consideration of his crime.
Court stated that in Petitioner’s 2013 parole
consideration, the Parole Investigator recommended that he be
paroled, however, in 2016 the Parole Investigator did not
recommend parole because of the heinous nature of
Petitioner’s crime. The Court failed to note that the
same Parole Investigator made the conflicting
Court found that although Petitioner presented his claim as a
breach of the plea agreement, he actually was complaining of
his repeatedly being denied parole. Petitioner argues the
Court mischaracterized his claim as an excuse to deny the
Court’s statement that he was sentenced to life
imprisonment was not the whole truth, because he was
sentenced to life with the possibility of parole. He
complains the changes in parole guidelines since his plea
have resulted in his having no realistic chance of parole.
Court’s citation to Henderson v. Scott, 260
F.3d 1213, 1216-17 (10th Cir. 2001), is not dispositive of
his ex post facto claim and is distinguishable.
Petitioner does not allege how the Henderson case is
motion will be considered under Rule 59(e), when it involves
reconsideration of matters properly encompassed in a decision
on the merits.” Phelps v. Hamilton, 122 F.3d
1309, 1323-24 (10th Cir. 1997) (citations and internal
quotations omitted). “A Rule 59(e) motion to alter or
amend the judgment should be granted only to correct manifest
errors of law or to present newly discovered evidence.”
Id. at 1324 (internal quotations omitted).
“Rule 59(e) relief is appropriate only where ‘the
court has misapprehended the facts, a party’s position,
or the controlling law.’” Barber ex rel.
Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222,
1228 (10th Cir. 2009) (quoting Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
action was denied as time barred under 28 U.S.C. §
2244(d)(1)(A), and Petitioner has not shown that decision was
erroneous. Furthermore, regardless of the time bar, and as
set forth in the Court’s prior Opinion and Order,
Petitioner’s claim fails on the merits. The Court,
therefore, finds Petitioner’s claims of error fail to