Hoeck v. Timme et al

Filing 32

ORDER denying 31 Motion for Reconsideration by Judge William J. Martinez on 1/22/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-00498-WJM
DAVID B. HOECK,
Applicant,
v.
RAE TIMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING SECOND MOTION FOR RECONSIDERATION

The matter before the Court is Mr. Hoeck’s [Second] Motion for Reconsideration
(ECF No. 31), filed pro se on January 16, 2014. The Court must construe the document
liberally because Applicant is not represented by an attorney. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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 twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). A motion to
reconsider filed more than twenty-eight days after the final judgment in an action should
be considered pursuant to Rule 60(b). See Van Skiver, 952 F.2d at 1243 (stating that a
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motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is filed
within the limit set forth under Rule 59(e)). Mr. Hoeck’s motion for reconsideration was
filed 118 days after a Final Judgment was entered dismissing this action on September
20, 2013. Therefore, the motion will be construed as a motion to reconsider filed
pursuant to Fed. R. Civ. P. 60(b).
I. Procedural Background
Mr. Hoeck’s § 2254 Application presented twelve claims for relief. During initial
review, the Court dismissed claim twelve of the Application because it failed to present
a federal constitutional issue. See July 15, 2013 Ord. (ECF No. 18, at 8). The Court
also ordered Respondents to file an Answer to claims one through eleven of the
Application within thirty (30) days of the July 15, 2013 Order, and granted Applicant
thirty days thereafter to file a Reply. (Id.). Respondents filed an Answer addressing the
merits of claims one through eleven on July 30, 2013. (ECF No. 20). Applicant did not
file a Reply by the court-ordered deadline, or request an extension of time. On
September 19, 2013, the Court entered an Order denying the § 2254 Application and
dismissing the action with prejudice.
In his first motion for reconsideration (ECF No. 28), Mr. Hoeck maintained that he
did not receive a copy of the Respondents’ Answer and was therefore not afforded an
opportunity to file a Reply before the Court dismissed this action on September 19,
2013. The Court denied the motion on December 31, 2013, finding that Applicant’s
inexplicable delay in advising the Court of his asserted failure to receive a copy of
Respondents’ Answer did not justify reconsideration of the order dismissing this action.
The Court further found that the motion for reconsideration provided no justification to
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re-open this action to allow Mr. Hoeck to file a Reply brief.
On January 2, 2014, Respondents filed a Notice with the Court confirming that a
copy of the Answer was mailed to Mr. Hoeck on July 30, 2013. The Notice further
indicated that a second hard copy of the Answer was being mailed to Applicant that day.

II. Standard of Review
Rule 60(b) provides that “on motion and just terms,” a court may relieve a party
from a final order because of “mistake, inadvertence, surprise, or excusable neglect
. . . [or] any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (6). The Court is
mindful that relief under Rule 60(b) “is extraordinary and may be granted only in
exceptional circumstances.” See Dronsejko v. Thornton, 632 F.3d 658, 664 (10th Cir.
2011) (internal quotation marks and citation omitted).
III. Analysis
In his current motion, Mr. Hoeck argues that the Court incorrectly applied the
AEDPA standard of review to deny relief for his claims. However, Applicant fails to
demonstrate that the Court’s resolution of his claims (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d). Mr. Hoeck is reminded
that “that review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster,

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S. Ct.

, 131

S.Ct. 1388, 1398 (2011). Furthermore, asserted errors of state law are not cognizable
on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
Upon consideration of the motion and the entire file, the Court finds that Mr.
Hoeck has not demonstrated some reason why the Court should reconsider and vacate
the order to dismiss this action. The Fed. R. Civ. P. 60(b) motion does not alter the
Court’s conclusion that this action properly was dismissed. Applicant is warned that any
further attempts to seek reconsideration of the September 19, 2013 dismissal order will
be stricken from the record. Accordingly, it is
ORDERED that the [Second] Motion for Reconsideration (ECF No. 31) filed pro
se by Applicant, David B. Hoeck, on January 16, 2014, which the Court has treated as a
motion seeking relief from the judgment pursuant to Rule 60(b) of the Federal Rules of
Civil Procedure, is DENIED.
Dated this 22nd day of January, 2014.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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