Mcafee Sr. v. Zupan et al
Filing
10
ORDER denying 9 Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) by Judge Lewis T. Babcock on 3/18/15.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00039-LTB
MR. ANTHONY E. MCAFEE, SR.,
Applicant,
v.
MR. DAVID ZUPAN, Warden of Territorial Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER
At issue is the pro se “Motion to Alter or Amend Judgment Pursuant to Fed. R.
Civ. P. 59(e)” (ECF No. 9) that Applicant filed on March 16, 2015. In the Motion, Mr.
McAfee asks the Court “to reconsider its ruling, denying his motion for an extension of
time to file a motion for authorization to file a second or successive habeas corpur [sic],
and grant him (30) thirty days to file it in the interest of justice, and to prevent any further
miscarriage of justice.”
The Court must construe the Motion liberally because Mr. McAfee 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 is denied.
I. Procedural Background
Mr. McAfee initiated this action on January 6, 2015 by filing pro se an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the
validity of his conviction in case 99CR4486 in the Denver County District Court. On
January 14, 2015, the Court dismissed the action for lack of jurisdiction because Mr.
McAfee conceded that he previously sought habeas corpus relief in this Court pursuant
to § 2254 challenging the validity of the same state court conviction. (See ECF No. 5).
Thus, the Court found that the instant application was a second or successive
application subject to the restrictions on filing a second or successive application in §
2244(b). The Court further advised Mr. McAfee that he must apply to the Tenth Circuit
for an order authorizing this Court to consider a second or successive habeas corpus
application.
Rather than file a motion for authorization to file a second or successive habeas
corpus pursuant to 28 U.S.C. § 2244(b), Mr. McAfee filed a “Motion for an Extention
[sic] of Time to File a Motion for Authorization to File a Second or Successive Habeas
Corpus” in the United States Courts of Appeals for the Tenth Circuit on February 12,
2015. (See ECF No. 9-1 at 1). In response to the motion, the Office of the Clerk for the
Tenth Circuit sent Mr. McAfee a letter stating that if he was “seeking an extension of
time in which to appeal the district court’s order” he must file that motion in the district
court pursuant to Fed. R. App. P. 4(a)(5). (Id. at 3). The letter further advised Mr.
McAfee that “the 30-day time to which you seem to refer is the time in which [the Tenth
Circuit] must rule on a motion for authorization to file a second or successive habeas
petition.” (Id.).
On February 23, 2015, Mr. McAfee filed a “Motion for an Extention [sic] of Time
to File a Motion for Authorization to File a Second or Successive Habeas Corpus” (ECF
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No. 7) in this Court. On March 4, 2015, the Court construed the Motion as a request for
an extension of time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5)(A) that
challenged the order of dismissal, and denied the Motion for failure to demonstrate
excusable neglect or good cause. (See ECF No. 8).
On March 16, 2015, Mr. McAfee filed a “Motion to Alter or Amend Judgment
Pursuant to Fed. R. Civ. P. 59(e)” (ECF No. 9) in this Court. In the Motion, Mr. McAfee
moves the Court pursuant to Fed. R. Civ. P. 59(e) for relief from the March 4 Order
denying his request for an extension of time. (See ECF No. 18). Rule 59(e),however,
concerns the filing of a motion to alter or amend a “judgement.” See Fed. R. Civ. P.
59(e). In the instant case, Mr. McAfee is requesting that the Court reconsider its order
denying his motion for an extension of time, not the underlying judgment. Therefore,
the Court will consider the Motion under the proper rule, Fed. R. Civ. P. 60(b). See
Marotta v. Cortez, No. 08-cv-02421-CMA-CBS, 2010 WL 1258022 (D. Colo. Mar. 29,
2010 (citing Broadway v. Norris, 193 F.3d 987 (8th Cir.1999) (holding that a motion for
“reconsideration” that is directed to a nonfinal order as opposed to a judgment, should
be construed as a Rule 60(b) motion). Rule 60(b) allows a court to grant relief from an
order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud ..., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged ...; or
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(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Accordingly, a Rule 60(b) motion for reconsideration is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. See
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Moreover,
“[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional
circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437,
1440 (10th Cir. 1990). The decision to grant relief under Rule 60(b) is discretionary;
and Mr. McAfee has the burden to show that exceptional circumstances exist that
require the Court to amend or vacate a final judgment or order. Servants of Paraclete,
204 F.3d at 1009.
Upon consideration of the Motion and the entire file, the Court finds that Mr.
McAfee fails to demonstrate some reason why the Court should reconsider and vacate
the March 4 order denying his request for an extension of time. In the Motion to
Reconsider, Mr. McAfee states that he was “unable to obtain the forms to file a motion
for authorization to file a second or successive habeas corpus from the law library at
this correctional facility, so he had to write to the United States Court of Appeals for the
Tenth Circuit, and request that the forms be sent to him.” (ECF No. 9 at 1-2). He
further asserts that he received the forms on February 4, 2015, but “due to the fact that
he is a layman, and unskilled in the law, and had to obtain assistance in filling out the
forms as well as it takes a few days to get into the law library to adequately prepare the
forms it would have been virtually impossible for him to meet the February 15, 2015
deadline to file his motion for authorization to file a second or successive habeas
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corpus.” (Id. at 2). He finally asserts that this Court inadvertently misapplied the law or
misunderstood Mr. McAfee’s position by construing his motion for an extension of time
to file a motion for authorization to file a second or successive habeas corpus as a
motion for an extension of time to file a notice of appeal. (Id. at 3).
To the extent Mr. McAfee asks this Court to reconsider his request for an
extension of time to file a motion for authorization to file a second or successive habeas
corpus application, this Court does not have jurisdiction to consider this request
because under 28 U.S.C. § 2244(b)(3), Mr. McAfee must obtain from the Tenth Circuit
an order authorizing the district court to consider a second or successive § 2254
application and in the absence of such authorization, this Court lacks jurisdiction to
consider the merits of the claims asserted in a second or successive § 2254 application.
To the extent, Mr. McAfee requests that this Court reconsider his request for an
extension of time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5)(A) that
challenges the Court’s order of dismissal for lack of jurisdiction, the Court denies this
request because Mr. McAfee has not satisfied any of the grounds for relief under Fed.
R. Civ. P. 60(b).
Accordingly, it is
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ORDERED that Mr. McAfee’s "Motion to Alter or Amend Judgment Pursuant to
Fed. R. Civ. P. 59(e)” (ECF No. 9) is construed as a Motion to Reconsider filed pursuant
to Fed. R. Civ. P. 60(b) and is denied.
DATED at Denver, Colorado, this
18th
day of
March
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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