Linzy v. Faulk et al

Filing 40

ORDER denying 38 Motion for New Trial; denying 39 Motion for Leave to expand the record. By Judge Raymond P. Moore on 11/19/2014.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-00962-RM
ALEX HOMER LINZY,
Applicant,
v.
FRANCIS FAULT, Warden, 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 New Trial Pursuant to FRCP 59(a)(2),
and to Alter or Amend a Judgment Pursuant to FRCP 59(e),” filed by Mr. Linzy, pro se, on
November 17, 2014. (ECF No. 38). Also pending is Applicant’s Motion for Leave to Expand
the Record Pursuant to Habeas Rule 7(a)” (ECF No. 39). The Court must construe the
documents liberally because Mr. Linzy 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 for a new trial and to alter or amend the judgment 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 28 days after the judgment is entered. See Fed. R. Civ.
P. 59(e). A motion to reconsider filed more than 28 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. Linzy’s motion to reconsider was filed 28 days after a
final judgment dismissing this action was entered on October 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. Linzy’s § 2254 Application asserted 12 claims for relief. In a July 16, 2014 Order,
the Court dismissed claims 5, 6 and 12 without prejudice because the claims failed to present
federal issues cognizable on federal habeas review. (ECF No. 21, at 23). The Court declined to
construe claim 11 as a distinct claim for relief. (Id.). Claims 8 and 10 were dismissed with
prejudice as procedurally defaulted. (Id.). The Court ordered Respondents 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 July 16, 2014 Order. (Id. at 21-22). Respondents filed an Amended
Answer on August 14, 2014 (ECF No. 31), and Applicant filed his Reply on September 16, 2014.
(ECF No. 34). On October 21, 2014, the Court entered an Order denying the § 2254 Application
and dismissing the action with prejudice. (ECF No. 36). Judgment was entered the same day.
(ECF No. 37).
II. Standard of Review
A motion to reconsider may be granted when the court has misapprehended the facts, a
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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) 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.
Servants of Paraclete, 204 F.3d at 1012.
III. Analysis
In his motion for reconsideration, Mr. Linzy rehashes the same arguments, albeit with
additional supporting allegations, as those raised in the § 2254 Application and Reply brief,
which were considered and rejected by the Court in the October 21, 2014 dismissal order. The
Court will not revisit those allegations here. Further, none of Mr. Linzy’s additional allegations
or proffered “evidence” demonstrate that he is entitled to federal habeas relief. And, Mr. Linzy is
reminded that for those claims analyzed under the deferential AEDPA standard of review, the
federal habeas court’s “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,

U.S.

, 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.
Mr. Linzy also contends that the Court misapprehended the allegations of claim 9 because
the claim “raised a completely different set of factual allegations than what were raised in his
prior claims and should have been the subject of its own findings of fact and conclusions as to its
merits.” (ECF No. 38, at 6). In claim 9, Applicant maintained that trial counsel rendered
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ineffective assistance by failing to raise a lack-of-foundation objection to the prosecution expert’s
testimony about the rape kit test results. (ECF No. 1, at 39-40). The Court concluded in the
dismissal order that claim 9 was not “substantial” under Martinez for the same reasons the Court
rejected sub-claims 3(e), (f) and (g).1 (ECF No. 36, at 28).
Claims 3(e), 3(f), 3(g) and 9 were all premised on trial counsel’s failure to challenge the
admission of the State expert’s testimony that a DNA sample extracted from the semen found on
vaginal swabs of the victim collected during a rape kit examination matched the control DNA
sample taken from the Applicant. The Court concluded that the issues raised in claim three
lacked merit because, under People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011),
evidence of the rape kit test results was properly admitted through the testimony of the
prosecution’s DNA analysis expert. For purposes of claim 9, the foundation for admission of the
State expert’s testimony concerning the DNA analysis was established by the following
stipulation of the parties:
Jeanne Kilmer, a forensic scientist with the Denver Police Department Crime Lab,
tested the vaginal swabs collected from Ms. Payne during the sexual assault exam
conducted on March 4, 2004, by the medical personnel at the Denver Health
Medical Center. Ms. Kilmer’s testing revealed the presence of semen on the
swabs used on Ms. Payne’s vaginal area.2
See People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011) (stating that before expert
testimony as to the results of the testing of an object may be received, some proof must be

1

In claim 3, Applicant asserted trial counsel should have: (e) filed a timely motion to suppress test results
on the ground that the chain-of-custody failed to establish that the semen sample that matched the Applicant’s DNA
was removed from the victim; (f) challenged the chain of custody of the prosecution’s physical evidence, and, (g)
objected to the admission of inadmissible evidence at trial and to call the laboratory technician to testify at trial about
the rape kit test results. (ECF No. 1, at 22-26).
2

See State Court R., 11/30/05 Trial Tr, at 221.

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presented of a connection between the object tested and the defendant, the victim, or the crime.).
To the extent Applicant argues that counsel was ineffective in stipulating to foundation, his claim
founders on the prejudice prong of the Strickland inquiry because he fails to point to any
evidence to show that the semen sample tested was not obtained from the vaginal swabs
collected from the victim.
Upon consideration of the motion and the entire file, the Court finds that Mr. Linzy 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 New Trial Pursuant to FRCP 59(a)(2), and to Alter or
Amend a Judgment Pursuant to FRCP 59(e),” filed pro se by Applicant Alex Homer Linzy, on
November 17, 2014 (ECF No. 38), which the Court has treated as a motion for reconsideration
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, is DENIED. It is
FURTHER ORDERED that Applicant’s Motion for Leave to Expand the Record
Pursuant to Habeas Rule 7(a)” (ECF No. 39) is DENIED.
DATED November 19, 2014, at Denver, Colorado.
BY THE COURT:

RAYMOND P. MOORE
United States District Judge

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