Carbajal v. Lynn et al
Filing
45
ORDER denying 36 Contemporaneous Objection to Senior Judge Lewis Babcock's Improper Dismissal of this Action Without Jurisdiction, 38 Request for Certificate of Appealability, and Motions for Reconsideration and Contemporaneous Objection to the Court's Order of Dismissal 37 and 44 , by Judge Lewis T. Babcock on 10/2/15.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02926-LTB
DEAN CARBAJAL,
Applicant,
v.
RANDY LYNN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER DENYING MOTIONS TO RECONSIDER
AND REQUEST FOR CERTIFICATE OF APPEALABILITY
This matter is before the Court on several filings submitted pro se by Applicant,
Dean Carbajal, in response to the Order of Dismissal (ECF No. 34) and the Judgment
(ECF No. 35) entered in this action on August 10, 2015. Mr. Carbajal is a prisoner in the
custody of the Colorado Department of Corrections. He initiated this action by filing an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 raising a
jurisdictional challenge to the validity of his conviction in Denver District Court case
number 10CR3824. He subsequently amended the application to include a claim
challenging the validity of his enhanced sentence in Denver District Court case number
10CR2824. The Court dismissed the action without prejudice for failure to exhaust state
remedies because his direct appeal remains pending in state court. The Court also
noted that, even if Mr. Carbajal’s direct appeal was not pending, he failed to demonstrate
he has fairly presented his claim challenging his enhanced sentence to the state courts.
On September 2, 2015, Mr. Carbajal filed a document titled “Contemporaneous
Objection to Senior Judge Lewis Babcock’s Improper Dismissal of this Action Without
Jurisdiction” (ECF No. 36). On September 10, 2015, Mr. Carbajal filed an unsigned
motion titled “Plaintiff’s Motion for Reconsideration and Contemporaneous Objection to
the Court’s Order of Dismissal” (ECF No. 37). On September 16, 2015, Mr. Carbajal
filed a “Notice of Appeal” (ECF No. 39) and “Petitioner Dean Carbajal’s Request for
Certificate of Appealability” (ECF No. 38). On September 28, 2015, Mr. Carbajal filed a
second “Plaintiff’s Motion for Reconsideration and Contemporaneous Objection to the
Court’s Order of Dismissal” (ECF No. 44) that is signed.
The Court must construe Mr. Carbajal’s filings liberally because he 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
motions to reconsider and the request for a certificate of appealability 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
twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e).
Mr. Carbajal’s “Contemporaneous Objection to Senior Judge Lewis Babcock’s
Improper Dismissal of this Action Without Jurisdiction” was filed within twenty-eight days
after the Judgment was entered in this action and will be considered pursuant to 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).
Mr. Carbajal contends in his “Contemporaneous Objection to Senior Judge Lewis
Babcock’s Improper Dismissal of this Action Without Jurisdiction” that this action should
have been assigned to Judge Robert E. Blackburn in accordance with Rule 40.1(c)(1) of
the Local Rules of Practice of the United States District Court for the District of
Colorado-Civil. Local Rule 40.1(c)(1) provides that “[i]f an unrepresented party in a new
case already has a case pending or had a case terminated within 12 months of the new
filing, the new case shall be assigned to the judicial officers who were assigned the earlier
case.” However, Mr. Carbajal’s argument ignores District of Colorado Local Rule 8.1,
which provides for preliminary review of prisoner pleadings by a “judicial officer
designated by the Chief Judge” prior to assignment in accordance with Local Rule 40.1.
Therefore, Mr. Carbajal’s “Contemporaneous Objection to Senior Judge Lewis Babcock’s
Improper Dismissal of this Action Without Jurisdiction” will be denied.
The Court next will address “Plaintiff’s Motion for Reconsideration and
Contemporaneous Objection to the Court’s Order of Dismissal.” As noted above, an
unsigned copy of the motion was filed on September 10, 2015, and a signed copy was
filed on September 28, 2015. The Court will consider “Plaintiff’s Motion for
Reconsideration and Contemporaneous Objection to the Court’s Order of Dismissal”
pursuant to Rule 60(b) because even the unsigned copy was filed more than twenty-eight
3
days after the Judgment was entered on August 10. Although the motion is dated
September 3, 2015, the motion does not include a certificate of mailing that satisfies the
requirements of the prisoner mailbox rule in order to establish a filing date prior to when
the motion actually was received by the Court. See Price v. Philpot, 420 F.3d 1158,
1163-66 (10th Cir. 2005).
Relief under Rule 60(b) is appropriate only in extraordinary circumstances. See
Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir.
1994). Relief under Rule 60(b) is not available to revisit arguments already considered
or to raise new arguments that could have been raised previously. See Van Skiver, 952
F.2d at 1243.
Mr. Carbajal raises several arguments in “Plaintiff’s Motion for Reconsideration
and Contemporaneous Objection to the Court’s Order of Dismissal.” He first contends
the Court lacked jurisdiction to dismiss the action because it should have been assigned
to Judge Blackburn, an argument that lacks merit for the reason stated above. Mr.
Carbajal also contends he has exhausted state remedies for both of his claims in state
court habeas corpus proceedings; the exhaustion requirement should be excused
because of inordinate delay in resolving his direct appeal; his pending direct appeal is not
relevant to the issue of exhaustion of state remedies because he is asserting jurisdictional
claims; and exhaustion would be futile.
Upon consideration of “Plaintiff’s Motion for Reconsideration and
Contemporaneous Objection to the Court’s Order of Dismissal” and the entire file, the
Court finds that Mr. Carbajal fails to demonstrate the existence of any extraordinary
4
reason that would justify reconsidering and vacating the order dismissing this action for
failure to exhaust state remedies. Mr. Carbajal’s arguments already have been
addressed by the Court or could have been raised previously. Therefore, the motion will
be denied.
Finally, the Court will deny “Petitioner Dean Carbajal’s Request for Certificate of
Appealability” (ECF No. 38) because the Court determined in the Order of Dismissal that
Mr. Carabajal has not made a substantial showing of the denial of a constitutional right.
Accordingly, it is
ORDERED that the “Contemporaneous Objection to Senior Judge Lewis
Babcock’s Improper Dismissal of this Action Without Jurisdiction” (ECF No. 36), which the
Court has construed as a motion to reconsider pursuant to Fed. R. Civ. P. 59(e), is
DENIED. It is
FURTHER ORDERED that “Plaintiff’s Motion for Reconsideration and
Contemporaneous Objection to the Court’s Order of Dismissal” (ECF Nos. 37 & 44) is
DENIED. It is
FURTHER ORDERED that “Petitioner Dean Carbajal’s Request for Certificate of
Appealability” (ECF No. 38) is DENIED.
DATED at Denver, Colorado, this
2nd day of
October
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
5
, 2015.
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