O'Connor v. Trani

Filing 17

ORDER denying 16 Motion to Reconsider by Judge Lewis T. Babcock on 4/4/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03400-LTB
MICHAEL R. O’CONNOR,
Applicant,
v.
TRAVIS TRANI, Warden, Colorado State Penitentiary,
RICK RAEMISCH, Executive Director, CDOC, and
MARY CARLSON, Time/Release Operations, CDOC,
Respondents.

ORDER DENYING MOTION TO RECONSIDER

This matter is before the Court on the “Motion to Reconsider the Court’s Order of
Dismissal,” ECF No. 16, filed on March 28, 2014. Applicant seeks reconsideration of
the Order of Dismissal and Judgment filed on March 21, 2014, denying his Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. The Court must construe
the Motion to Reconsider 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). 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 Applicant’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 March 21 Order of Dismissal.

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 Applicant’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).
Applicant asserts that the Colorado Supreme Court decided the pending petition
for certiorari review regarding his state criminal case on February 18, 2014, before this
Court entered an order dismissing this action for failure to exhaust state court remedies.
Applicant contends that because he had exhausted his state court remedies before the
Court entered the dismissal on March 21, 2014, the action should be reinstated.

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Pursuant to 28 U.S.C. § 2254(b) a habeas petitioner must have exhausted
available state court remedies prior to seeking habeas relief. Smith v. Maschner, 899
F.2d 940, 951 (10th Cir. 1990). Applicant’s petition for certiorari review was pending on
December 17, 2013, when he filed this case. Applicant bears the burden of showing
that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d
392, 398 (10th Cir. 1992). He had sufficient time to inform the Court that his pending
petition for certiorari review had been denied by Colorado Supreme Court before this
case was dismissed. Nonetheless, he had not exhausted his remedies when he
initiated this action.
Upon consideration of the entire file, the Court finds and concludes that Applicant
fails to demonstrate some reason why the Court should reconsider and vacate the
decision to dismiss this action. Therefore, the Motion to Reconsider will be denied.
Applicant is reminded that this case was dismissed without prejudice and he may initiate
a new § 2254 action now that his state court remedies are exhausted. Accordingly, it is
ORDERED that the Motion to Reconsider, ECF No 16, is construed as filed
pursuant to Fed. R. Civ. P. 59(e) and is denied.
DATED at Denver, Colorado, this 4th

day of

April

, 2014.

BY THE COURT:

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

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