United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE.
the Court are Petitioner's motion to reconsider the
denial of his petition for a writ of habeas corpus (Dkt. 31),
his motion for relief from late filing of a notice of appeal
(Dkt. 43), and his motion for status of motion for relief
from late filing of appeal (Dkt. 46). For the reasons set
forth below, all three motions must be DENIED.
to Reconsider Denial of Habeas Corpus Petition
September 16, 2019, Petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 was denied as
barred by the statute of limitations (Dkt. 29). On October
28, 2019, he filed an objection to the dismissal of his case
(Dkt. 31), which was construed as a motion to reconsider the
Court's decision (Dkt. 37). Because the motion was filed
more than 28 days after the entry of judgment, the motion is
construed as arising under Fed.R.Civ.P. 60(b). See
Fed. R. Civ. P. 59(b); Fed.R.Civ.P. 60(c)(1).
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) of the Federal Rules of Civil
Procedure, 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
initial matter, Petitioner complains that this Court should
have transferred this case back to the United States District
Court for the Western District of Oklahoma, where it
originated. The record, however, shows that when the action
was commenced in the Western District of Oklahoma, he was
incarcerated at Oklahoma State Penitentiary in McAlester,
Oklahoma, which is in the Eastern District (Dkt. 1).
Therefore, the case was properly transferred to this district
(Dkt. 8), and as stated in the Court's Order entered on
May 16, 2017, there was no basis for returning it to the
Western District when Petitioner was moved to a facility in
the Western District (Dkts. 16, 21). See Haugh v.
Booker, 210 F.3d 1147, 1149 (10th Cir. 2000).
also alleges the Court erroneously assumed the petition was a
challenge to the execution of his life sentence for first
degree murder in Oklahoma County District Court No. 72-1881.
Instead, he asserts the petition requested immediate release,
because the Department of Corrections had violated the terms
of an agreement concerning his pre-parole conditional
supervision status with respect to the life sentence. He
argues his pre-parole status is the same as parole, and he
was entitled to the same due process protections of notice
and a hearing before having his pre-parole status revoked.
Nonetheless, the Court finds Petitioner's habeas claim
arose from the execution of his life sentence, so there was
no error in this characterization by the Court.
further claims the Court's determination that the
petition is time barred is incorrect. He alleges he initially
attempted to resolve the issue of his unlawful confinement in
August 2000 in Pittsburg County District Court No.
C-2000-452.He asserts the state-court proceedings
concluded on November 24, 2015, in No. PC-2015-766,
his habeas petition was timely filed on July 19, 2016. The
issue, however, is when the tolling period began, not when
his state-court proceedings concluded.
forth in the Court's September 16, 2019, Opinion and
Order, the latest date which reasonably could be asserted as
the factual predicate of Petitioner's claim under 28
U.S.C. § 2241(1)(D) was March 7, 2007, when Petitioner
completed his Washington state sentences and resumed serving
his Oklahoma life sentence. Therefore, the deadline for
commencing a federal habeas action on the claim was March 8,
2008. Id. The petition, however, was not filed until
July 19, 2016. The Court correctly found the petition was
time-barred. Therefore, Petitioner's motion to reconsider
the denial of his petition for a writ of habeas corpus (Dkt.
31) is DENIED.
for Relief from Late Filing of Notice of Appeal and for
Status of Motion for Relief from Late Filing of
also has filed a motion for relief from his late filing of a
notice of appeal through no fault of his own (Dkt. 43).
Petitioner alleges he did not receive a copy of the September
16, 2019, Opinion and Order denying his habeas petition until
October 1, 2019, because of a state-wide prison lockdown
resulting from gang violence. He has submitted a copy of the
Legal Mail Log indicating he received mail from this Court on
October 1, 2019 (Dkt. 43 at 3).
further claims that during the lockdown, prisoners were
required to submit Requests to Staff (RTS) to gain access to
the facility's legal resources. He has submitted a copy
of his RTS received by the prison law library supervisor on
October 4, 2019, requesting access to the law library to meet
an appellate deadline (Dkt. 43 at 4). The October 4, 2019,
response to the RTS stated the required form was attached.
Id. Petitioner contends the consequences of the
lockdown resulted in his late filing of the notice of appeal
on October 28, 2019 (Dkt. 32).
November 13, 2019, the Tenth Circuit Court of Appeals entered
an Order in No. 19-7058 concerning appellate jurisdiction
based on the late filing of Petitioner's notice of appeal
(Dkt. 43 at 7-9). The Tenth Circuit's Order states that
Petitioner had advised that he had believed his motion to
reconsider (Dkts 31, 37) “would extend the time he had
to appeal from the dismissal of his § 2241
petition” (Dkt. 43 at 7). The Tenth Circuit, however,
stated that “a motion to reconsider would have to be
filed no more than 28 days after judgment was entered.”
Id. at 7-8. Therefore, the motion to reconsider
could not “serve as a basis to toll the time to appeal
from the judgment.” Id. at 8.
Court has carefully reviewed the record and construes
Petitioner's pleadings liberally. Haines v.
Kerner, 404 U.S. 519 (1972). While Petitioner did not
receive a copy of the Court's Opinion and Order denying
his habeas petition until October 1, 2019, he still had until
October 16, 2019, to submit his one-page notice of appeal
(Dkt. 32). See Fed. R. App. P 4(a)(1)(A). Further,
he argued to the Tenth Circuit that the reason for his