Hoeck v. Timme et al

Filing 25

ORDER denying #24 Motion for Relief from Court Order or Judgment filed pro se by Applicant, David B. Hoeck, by Judge William J. Martinez on 5/13/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-02575-WJM
DAVID B. HOECK,
Applicant,
v.
RAE TIMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING MOTION FOR RECONSIDERATION

This matter is before the Court on the Motion for Relief from Court Order or
Judgment (ECF No. 24) filed pro se by Applicant, David B. Hoeck, on May 5, 2014.
The Court must construe the document liberally because Mr. Hoeck 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). For the reasons discussed below, the motion will
be construed as a motion for reconsideration.
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
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 to reconsider was filed
fourteen days after a final judgment was entered dismissing this action on April 21,
2014. Therefore, the motion will be construed as a motion to reconsider filed pursuant
to Fed. R. Civ. P. 59(e).
I. Procedural Background
Mr. Hoeck’s § 2254 Application presented eighteen claims for relief. During initial
review, the Court dismissed claims three and four, and part of claim one, because the
allegations failed to present issues cognizable under § 2254. (ECF No. 16, at 21; Feb.
3, 2014 Ord.). The Court also dismissed claims 16 and 17 as procedurally barred. (Id.).
Respondents were ordered to answer the properly exhausted claims, and to address
the applicability of Martinez v. Ryan,

U.S.

, 132 S.Ct. 1309 (2012), to the

procedurally defaulted ineffective assistance of trial counsel claims, within thirty (30)
days of the February 3 Order. (Id. at 21-22). Respondents filed an Answer on February
26, 2014, and Applicant filed his Reply on March 13, 2014. (ECF Nos. 19, 21). On April
21, 2014, the Court entered an Order denying the § 2254 Application and dismissing the
action with prejudice. Judgement was entered the same day.
II. Standard of Review
A motion to reconsider may be granted when the court has misapprehended the
facts, a party’s position, or the law. Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). Specific grounds for reconsideration under Fed. R. Civ. P. 59(e)

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include: “(1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Id.
(citing Brumark Corp.v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
A motion to reconsider should not be used to revisit issues already addressed or
advance arguments that could have been raised earlier. Id.
III. Analysis
Mr. Hoeck argues in his motion that this 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,

S. Ct.

, 131 S.Ct.

1388, 1398 (2011). This means that “evidence introduced in federal court has no
bearing on § 2254(d)(1) review.” Id. at 1400.
In support of his claim that trial counsel was ineffective in failing to investigate his
competency, Mr. Hoeck maintains that counsel knew that he suffered a closed head
injury approximately one year prior to trial, that Applicant signed release forms
authorizing counsel to obtain his medical records, and that counsel should have
investigated medical providers who allegedly would have testified as to Applicant’s
mental incompetency at the time of trial. (ECF No. 24, at 2). The Court addressed and
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rejected Applicant’s claim in the April 21, 2014 dismissal order under the AEDPA
standard of review and his allegations will not be revisited here. See Servants of the
Paraclete, 57 F.3d at 948.
Furthermore, although Mr. Hoeck identifies the medical providers who would
have testified about his incompetency, he fails to submit any affidavits from the
proposed witnesses. As such, he has not made a colorable showing of prejudice
resulting from counsel’s alleged deficient performance. See United States v. Ashimi,
932 F.2d 643, 650 (7th Cir. 1991) (to show ineffective assistance, evidence about
testimony of putative witness must generally be presented by witness testimony or
affidavit); Sanders v. Trickey, 875 F.2d 205, 210-11 (8th Cir. 1989) (failure to provide
affidavit from witness regarding potential testimony precludes finding of prejudice);
United States v. Gallant, Nos. 13-1041 and 1048, 2014 WL 1613334, at *3 (10th Cir.
April 24, 2014) (“unsupported descriptions [of proposed witness testimony], which also
fail to show that the uncalled witnesses would have testified at trial, are insufficient to
show prejudice”); Cf. United States v. Cosby, 983 F.Supp. 1022, 1026 (D. Kan.1997)
(refusing to consider defendant's assertions about how an alleged alibi witness would
have testified because defendant did not obtain an affidavit explaining the witness's
proposed testimony in his own sworn statement).
And, finally, Mr. Hoeck maintains that he is actually innocent of the crime.
However, the Supreme Court has never recognized a free-standing constitutional claim
of actual innocence. See Herrera v. Collins, 506 U.S. 390, 404-05 (1993).
Instead, actual innocence may excuse a habeas petitioner’s procedural default of a
federal claim in state court to prevent a fundamental miscarriage of justice. See Schlup
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v. Delo, 513 U.S. 298, 314-15 (1995). A Schlup claim of innocence is thus “not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must pass
to have his otherwise barred constitutional claim considered on the merits.” Id. (quoting
Herrera, 506 U.S. at 404).
Moreover, even if the Court considered Mr. Hoeck’s allegations under the Schlup
standard to excuse his procedural default of certain claims, he has not made a sufficient
showing. A claim of actual innocence requires an applicant “to support his allegations
of constitutional error with new reliable evidence–whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence–that was not
presented at trial.” Schlup, 513 U.S. at 324 (emphasis supplied); see also House v. Bell,
547 U.S. 518, 537-38 (2006). The actual innocence exception to the procedural default
doctrine does not apply where the evidence relied on by the habeas petitioner was
known to him before trial. See McGee v. Rudek, No. 116241, 458 F. App’x 781, 782
(10th Cir. Feb. 27, 2012) (unpublished). Because Mr. Hoeck relies on information that
was available to him before trial (ECF No. 24, at 4-5), he may not rely on his alleged
innocence to revive his procedurally defaulted claims.
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. 59(e) motion does not alter the
Court’s conclusion that this action properly was dismissed. Accordingly, it is
ORDERED that the Motion for Relief from Court Order or Judgment (ECF No.
24), filed pro se by Applicant, David B. Hoeck, on May 5, 2014, which the Court has
treated as a motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of
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Civil Procedure, is DENIED.
Dated this 13th day of May, 2014.

BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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