Wallin v. Everett et al

Filing 28

ORDER denying 27 Motion to Reconsider, by Judge Lewis T. Babcock on 5/4/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02009-LTB
DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN,
Applicant,
v.
VINCE EVERETT, Warden of KCCC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING MOTION TO RECONSIDER

The matter before the Court is the “Request for Amended Order of Dismissal
Without Prejudice,” Doc. No. 27, that Applicant, a pro se prisoner litigant, filed on April
30, 2012. He seeks reconsideration of the Order of Dismissal entered on April 17,
2012. The Court must construe the Request liberally because Applicant is proceeding
pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
Final decisions are those that end the litigation on the merits and leave nothing
for the district court to do except execute the judgment. Van Cauwenberghe v. Biard,
486 U.S. 517, 521-22 (1988); In re Durability, Inc., 893 F.2d 264, 265 (10th Cir. 1990).
The Order of Dismissal and Judgment were entered on April 17, 2012. A litigant subject
to an adverse judgment, and who seeks reconsideration by the district court of that
adverse judgment, may “file either a motion to alter or amend the judgment pursuant to
Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant to Fed. R.

Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A
motion to alter or amend the judgment must be filed within twenty-eight days after the
judgment is entered. See Fed. R. Civ. P. 59(e). Because the Request was filed within
twenty-eight days after the Order of Dismissal and Judgment were entered in this action
the Request is construed as a Motion to Reconsider filed pursuant to Rule 59(e). See
Van Skiver, 952 F.2d at 1243 (stating that a motion to reconsider should be construed
as filed pursuant to Rule 59(e) when it is filed within the ten-day limit (limit effective prior
to December 1, 2009) set forth under Rule 59(e)).
The three major grounds that justify reconsideration are: (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver, 952 F.2d at 1243).
Applicant is requesting a “clarification” of the Court’s April 17 Order. He asks that
the Court include in the April 17 Order a statement that any new habeas action filed with
this Court and raising the same claims asserted in this case will not be deemed
successive. He also requests that the Court preserve his right to challenge the Court’s
findings that fifty-two days have run against the time limitation under 28 U.S.C.
§ 2244(d) with respect to this habeas action.

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The action was dismissed without prejudice as a mixed petition. No further
clarification as suggested by Applicant is necessary. Nothing in the Court’s Order of
Dismissal misapprehended the facts, a party’s position, or the controlling law.
Accordingly, it is
ORDERED that Applicant’s Request for Amended Order of Dismissal Without
Prejudice, Doc. No. 64, is construed as a Motion to Reconsider filed pursuant to Fed. R.
Civ. P. 59(e) and is denied.
DATED at Denver, Colorado, this

4th

day of

May

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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