Gregory v. Denham
ORDER denying 22 Ex Parte Injured Party's Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e) to Senior Judge Lewis T. Babcock Order and Judgment for Dismissal Dated September 5, 2014 by Judge Lewis T. Babcock on 9/17/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02267-LTB
JOHNNY BRETT GREGORY,
DEBORAH DENHAM, Warden,
ORDER DENYING MOTION TO RECONSIDER
Applicant, Johnny Brett Gregory, has filed pro se on September 12, 2014, an ”Ex
Parte Injured Party’s Motion for Reconsideration Pursuant to Fed. R. Civ. P. 59(e) to
Senior Judge Lewis T. Babcock Order and Judgment for Dismissal Dated September 5,
2014" (ECF No. 22) asking the Court to reconsider and vacate the Order of Dismissal
(ECF No. 16) and the Judgment (ECF No. 17) entered in this action. The Court must
construe the motion to reconsider liberally because Mr. Gregory 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 to
reconsider will be denied.
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). The Court will
consider the motion to reconsider pursuant to Rule 59(e) because the motion was filed
within twenty-eight days after the judgment in this action was entered. See Van Skiver,
952 F.2d at 1243 (stating that motion to reconsider filed within ten-day limit for filing a
Rule 59(e) motion under prior version of that rule should be construed as a Rule 59(e)
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997) (internal quotation marks omitted). Relief under Rule 59(e) also is
appropriate when “the court has misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). However, 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.
Mr. Gregory initiated this action by filing an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging the validity of his criminal conviction.
Mr. Gregory was convicted in the United States District Court for the Northern District of
Georgia. The Court denied the application and dismissed the action for lack of statutory
jurisdiction because Mr. Gregory failed to demonstrate that the remedy available to him
pursuant to 28 U.S.C. § 2255 in the sentencing court is inadequate or ineffective.
Upon consideration of the motion to reconsider and the entire file, the Court finds
that Mr. Gregory fails to demonstrate some reason why the Court should reconsider and
vacate the order to dismiss this action. Although, Mr. Gregory asserts that Persaud v.
United States, 134 S. Ct. 1023 (U.S. Jan. 27, 2014) is new controlling law that permits
him to challenge his sentence pursuant to 28 U.S.C. § 2241, Persaud is not applicable
to Mr. Gregory’s case and is not controlling law. In Persuad, the United States
Supreme Court remanded the case to the United States Court of Appeals for the Fourth
Circuit for further consideration to determine whether the petitioner may challenge the
sentencing error under 28 U.S.C. § 2241 because 28 U.S.C. § 2255 was “inadequate or
ineffective” to allow him to raise a claim that an intervening and retroactively applicable
statutory-construction decision established that the district court erroneously imposed a
mandatory minimum sentence of life imprisonment. First, the Fourth Circuit’s savings
clause test is not controlling law in the Tenth Circuit. Second, in his attempts to
demonstrate that the remedy under § 2255 was inadequate or ineffective, Mr. Gregory
does not argue that his claims are based upon an intervening and retroactively
applicable statutory-construction decision establishing that his sentence was erroneous.
Rather, he argues that the sentencing court lacked jurisdiction because the federal
government never had custody of the handgun that supported Mr. Gregory’s conviction
for possession of a firearm in furtherance of a drug trafficking offense.
Therefore, the Court finds that Mr. Gregory has not presented any new
controlling law or evidence and the Court remains convinced that the action properly
was dismissed for lack of statutory jurisdiction because Mr. Gregory fails to demonstrate
the claims he asserts could not have been raised in an initial § 2255 motion. See Prost
v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011). Therefore, the motion to reconsider
will be denied. Accordingly, it is
ORDERED that the “Ex Parte Injured Party’s Motion for Reconsideration
Pursuant to Fed. R. Civ. P. 59(e) to Senior Judge Lewis T. Babcock Order and
Judgment for Dismissal Dated September 5, 2014" (ECF No. 22) is DENIED.
DATED at Denver, Colorado, this 17th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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