Lorentzen v. Omer

Filing 18

ORDER denying 17 Motion to Reconsider, by Judge Lewis T. Babcock on 9/5/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01233-LTB
DAVID PAUL LORENTZEN,
Applicant,
v.
ROBERT OMER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING MOTION TO RECONSIDER

This matter is before the Court on the motion titled “Motion to Alter or Amend
Order of Dismissal” (ECF No. 17) submitted pro se by Applicant, David Paul Lorentzen,
on August 27, 2012.
Mr. Lorentzen seeks reconsideration of the Order of Dismissal and Judgment
filed on August 14, 2012, denying his application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. In the instant action, Mr. Lorentzen, who currently is on probation,
challenged the validity of his conviction and sentence in Montrose County District Court.
The Court must construe the August 27 motion liberally because Mr. Lorentzen
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). For the reasons stated below, the
motion will be denied.
The Court denied the habeas corpus application and dismissed the instant action
without prejudice for Mr. Lorentzen’s failure to exhaust state court remedies before

seeking federal habeas corpus relief. The reasons for the dismissal are explained in
greater detail in the August 14 dismissal order.
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). The Court
will consider Mr. Lorentzen’s motion to reconsider pursuant to Fed. R. Civ. P. 59(e)
because it was filed within twenty-eight days after the judgment was entered in this
action on August 14. 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).
Upon consideration of the entire file, the Court finds and concludes that Mr.
Lorentzen fails to demonstrate some reason why the Court should reconsider and
vacate the decision to dismiss this action because he fails to demonstrate he invoked

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one complete round of the state’s established appellate review process. Therefore, the
motion to reconsider will be denied.
Accordingly, it is
ORDERED that the motion titled “Motion to Alter or Amend Order of Dismissal”
(ECF No. 17) submitted pro se by Applicant, David Paul Lorentzen, on August 27, 2012,
and and which the Court has construed as a motion to reconsider filed pursuant to Fed.
R. Civ. P. 59(e), is denied.
DATED at Denver, Colorado, this

5th

day of

September

BY THE COURT:

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

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, 2012.