United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, United States District Judge.
before the Court is Petitioner’s Motion for
Reconsideration En Banc Pursuant to Rule 60(b) (Doc. No. 9).
On June 24, 2019, this Court issued its Opinion and Order
(Doc. No. 7) sua sponte dismissing Plaintiff’s Petition
for Writ of Habeas Corpus (“Petition, ” Doc. No.
1) as untimely.
procedural history of Petitioner’s state-court
convictions, appeals, and applications for postconviction
relief is set forth in the Court’s Opinion and Order
and will not be repeated here. The Court determined that the
Petition, filed on August 6, 2018, was untimely pursuant to
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), as
even allowing for statutory tolling it had been filed more
than one year after Petitioner’s conviction became
final and he had made no showing of entitlement to equitable
tolling or of actual innocence. See Op. & Order
filed his Motion for Reconsideration on July 8, 2019,
asserting that the Court erred in calculating the timeliness
of his Petition. See Pet’r’s Mot. at 2.
Petitioner argues the one-year statute of limitation should
be calculated pursuant to 28 U.S.C. § 2244(d)(1)(D).
See id. Petitioner states the Petition was based
upon the State of Oklahoma’s miscalculation of his
future dangerousness and that the factual predicate of this
claim was “developed” “after trial, upon
assessment made by the parole investigator in 2014 and
2017.” Id. at 1-2; see also
Pet. at 7. Petitioner contends that he
“immediate[ly]” filed “an application for
post-conviction relief” raising this predicate fact in
October 2017. Pet’r’s Mot. at 2.
Federal Rules of Civil Procedure do not recognize a motion to
reconsider. Computerized Thermal Imaging, Inc., v.
Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir.
2002). Federal Rule of Civil Procedure 60(b) provides,
however, that a court may relieve a party, upon motion, from
a final judgment for mistake, inadvertence, surprise,
excusable neglect, fraud, or “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(1), (3), (6).
“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.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citing Brumark Corp. v. Samson Res.
Corp., 57 F.3d 941, 948 (10th Cir. 1995)). “[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.” Id. (citation
a Rule 60(b) motion filed in a habeas proceeding is treated
as “a second or successive petition if it in substance
or effect asserts or reasserts a federal basis for relief
from the petitioner’s underlying conviction.”
Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir.
2006). If the motion challenges “only the federal
habeas court’s ruling on procedural issues [it] should
be treated as a true 60(b) motion rather than a successive
petition.” Id. at 1216. Here, Petitioner
challenges a procedural determination and, thus, the Motion
is treated as a true Rule 60(b) motion. See id.
(stating that a Rule 60(b) motion “asserting that the
federal district court incorrectly dismissed a petition . . .
because of the statute of limitations constitutes a true
construing the Motion, Petitioner asserts that the Court has
misapprehended the facts upon which the Petition is based
and, as a result, mistakenly calculated the one-year statute
of limitations from the date on which his conviction became
final pursuant to 28 U.S.C. 2244(d)(1)(A). See Fed.
R. Civ. P. 60(b)(1) (allowing relief based on “mistake,
inadvertence, surprise, or excusable neglect”).
Petitioner argues the Court should have calculated the
statute of limitations from “‘the date on which
the factual predicate of the claim or claims presented could
have been discovered through the exercise of due
diligence.’” Pet’r’s Mot. at 2
(quoting 28 U.S.C. § 2244(d)(1)(D)). Specifically,
Petitioner contends that the 2014 Pardon and Parole
Board’s investigation discussed in the Petition
constitutes new evidence of the State of Oklahoma’s
miscalculation of his future dangerousness and, therefore,
the statute of limitations period is most appropriately
calculated pursuant to § 2244(d)(1)(D). See Id
. at 1-2. Petitioner points to the assessed level of
risk to the community attributed to him in this
investigation. See id.; see also Pet.
Petition states that during his incarceration Petitioner
completed “SAMSHA Anger Management and Victim
Impact” programs and is currently enrolled in
“the GED program and Therapeutic Living Program”
and that “[u]pon completion of these programs and
development, Petitioner has been assessed by the Pardon and
Parole Board investigation in 2014 as MODERATE RISK for
return to the community.” Pet. at 6. Petitioner argues this
new level of assessed risk constitutes “evidence of
material facts, not previously presented and heard, that
requires modification of the sentence in the interest of
justice.” Pet. at 6; see also Id . at 7; Okla.
Stat. tit. 22, § 1080(d).
Court concludes that the referenced investigation and risk
assessment fail to speak to facts present at the time of
Petitioner’s convictions indicating a miscalculation by
the trial court. Instead, the 2014 investigation and risk
assessment establish only that Petitioner completed various
programs during his incarceration and that the completion of
those programs resulted in the Pardon and Parole Board
assigning him a level of moderate risk for return to the
community. Pet. at 6. Petitioner's implication that good
behavior and completion of beneficial programs over the
course of 23 years of incarceration should trigger the
statute of limitations to begin to run on the unspecified
date of a 2014 Pardon and Parole Board investigation is
without merit. Petitioner sets forth no legal basis for such
a finding in his Petition or in his Motion. Further,
“the undersigned is unaware of any legal authority
permitting a court to essentially usurp one role of a
state’s pardon and parole board by granting a
petitioner a new statute of limitations based on his or her
good behavior while incarcerated.” Lowery v.
Bryant, CIV-18-413-F, 2018 WL 3978380, at *2 (W.D. Okla.
July 9, 2018) (R. & R.), adopted, 2018 WL
3978370 (W.D. Okla. Aug. 20, 2018), certificate of
appealability denied, 760 Fed.App’x 617 (10th Cir.
2019), and petition for cert. filed, No. 18-9524
(U.S. June 3, 2019). Therefore, Petitioner has not shown that
his limitations period was triggered by newly discovered
evidence of predicate facts invoking calculation of the
statute of limitations pursuant to 28 U.S.C. §
Court also finds that even if it were to conclude that the
2014 assessment demonstrated a newly discovered predicate
fact to support Petitioner’s claim, the Petition would
remain untimely. Petitioner raised this issue for the first
time in his October 2017 application for postconviction
relief, more than one year after any 2014 event. Pet. at 7.
Statutory tolling would not extend the one-year limitations
period calculated from the 2014 assessment. Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)
(“Only state petitions for post-conviction relief filed
within the one year allowed by AEDPA will toll the statute of
limitations.”). And Petitioner has presented no
actual-innocence argument or facts tending to “show
both extraordinary circumstances preventing timeliness and
diligent pursuit of his ...