Lucero v. Medina et al

Filing 40

ORDER denying 39 Motion to Reconsider. It is ORDERED that the "Motion to Alter or Amend Judgment and Request for Certificate of Appealability" (Doc. # 39 ), filed pro se by Applicant, Anthony J. Lucero, on June 12, 2013, and which t he Court has construed as a motion to reconsider filed pursuant to Fed. R. Civ. P. 59(e), is DENIED. The request for a certificate of appealiability is DENIED as moot pursuant to the May 29, 2013 Order (Doc. # 37 ). By Judge Raymond P. Moore on 06/17/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 12-cv-01919-RM
ANTHONY J. LUCERO,
Applicant,
v.
ANGEL MEDINA, Warden, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER DENYING MOTION TO RECONSIDER

Applicant Anthony J. Lucero, is serving a life sentence with the Colorado
Department of Corrections (CDOC) based on his convictions in the Jefferson County,
Colorado, District Court for felony murder and crime of violence. This matter is before
the Court on the “Motion to Alter or Amend Judgment and Request for Certificate of
Appealability” [Doc. # 39], filed pro se by Applicant on June 12, 2013. The Court must
construe the June 12, 2013 motion liberally because Mr. Lucero 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). The Court thus construes Mr. Lucero’s “Motion to Alter or Amend
Judgment” liberally as a motion to reconsider the Order Denying Application for a Writ of
Habeas Corpus and Judgment entered on May 29, 2013.
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. Lucero’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 May 29. 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 the 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). Relief under Rule 59(e) also is appropriate when
“the court has misapprehended the facts, a party’s position, or the controlling law. Id. at
1012. Upon review of the motion to reconsider and the entire file, the Court concludes
that Mr. Lucero fails to demonstrate that any of the grounds justifying reconsideration
exist in his case.
Mr. Lucero filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 asserting seven claims for relief (including sub-claims) challenging his
state convictions and sentence. Some of the claims were dismissed in a January 28,
2013 Order, as procedurally barred or for failure to state a claim cognizable on federal
habeas review. [Doc. # 19]. The remaining claims were dismissed on the merits
pursuant to the deferential AEDPA standard of review set forth in 28 U.S.C.

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§ 2254(d)(1) and (2). [Doc. # 37]. See Harrington v. Richter, 562 U.S.

, 131 S.Ct.

770, 786 (2011) (recognizing that § 2254(d) imposes a standard that is “difficult to
meet”); see also Woodford v. Visciotti, 537 U.S. 19, 24 (per curiam) (§ 2254(d)
establishes a “highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt”) (citation and
internal quotation marks omitted). The reasons for the dismissal are explained in detail
in the May 29 dismissal order. [Id.].
In his motion to reconsider, Mr. Lucero maintains that the Court failed to consider
the arguments he raised in his Reply brief [Doc. # 34] before dismissing the Application.
He also contends that the state appellate court decided his claims incorrectly, based on
arguments that he raised or could have raised before the state courts. A Rule 59(e)
motion is not a new opportunity to revisit issues already addressed or to advance
arguments that could have been raised previously. See id. Moreover, the federal
habeas court’s review of a petitioner’s claims is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

U.S.

, 131 S.Ct. 1388, 1398 (2011). Upon consideration of the entire file, the Court finds
and concludes that Mr. Lucero has not asserted any of the major grounds that would
justify reconsideration in his case. See Servants of the Paraclete, 204 F.3d at 1012.
Therefore, the motion to reconsider will be denied. Accordingly, it is
ORDERED that the “Motion to Alter or Amend Judgment and Request for
Certificate of Appealability” [Doc. # 39], filed pro se by Applicant, Anthony J. Lucero, on
June 12, 2013, and which the Court has construed as a motion to reconsider filed

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pursuant to Fed. R. Civ. P. 59(e), is DENIED. The request for a certificate of
appealiability is DENIED as moot pursuant to the May 29, 2013 Order [Doc. # 37].
DATED at Denver, Colorado, this 17th day of June, 2013.
BY THE COURT:

Raymond P. Moore
United States District Court Judge

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