Steinhour v. State of Colorado et al
ORDER denying 17 "Motion to Alter or Amend Rehearing Judgment Extension of Time for Filing" by Judge Lewis T. Babcock on 3/16/16.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01884-LTB
ARCHIE R. STEINHOUR,
STATE OF COLORADO,
THE ATTORNEY GENERAL OF THE STATE OF COLORADO, and
ORDER DENYING SECOND MOTION FOR RECONSIDERATION
The matter before the Court is Applicant’s pro se “Motion to Alter or Amend
Rehearing Judgment Extension of Time for Filing” (ECF No. 17) asking the Court to
reconsider its Order Denying Motion for Reconsideration and Granting Motion for
Extension of Time to File Notice of Appeal (ECF No. 16) entered in this action on March
2, 2016. Mr. Steinhour also requests, in the alternative, that he be granted another
thirty-day extension of time to file a notice of appeal. The Court must construe the
motion liberally because Applicant 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). Accordingly, the Court construes the motion as a second motion for
reconsideration of the Court’s Order of Dismissal (ECF No. 13) and Judgment (ECF No.
14) entered in this action on February 5, 2016. 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). A motion to
reconsider filed more than twenty-eight 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. Steinhour’s second motion for
reconsideration was filed thirty-eight days after a Final Judgment was entered
dismissing this action on February 5, 2016. Therefore, the motion will be construed as
a motion to reconsider filed pursuant to Fed. R. Civ. P. 60(b).
Rule 60(b) provides that “on motion and just terms,” a court may relieve a party
from a final order because of “mistake, inadvertence, surprise, or excusable neglect
. . . [or] any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (6). The Court is
mindful that relief under Rule 60(b) “is extraordinary and may be granted only in
exceptional circumstances.” See Dronsejko v. Thornton, 632 F.3d 658, 664 (10th Cir.
2011) (internal quotation marks and citation omitted).
In his first motion for reconsideration (ECF No.15), Mr. Steinhour maintained that
his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §2254 was not timebarred because (a) his sentence was illegal and the mittimus should never have been
issued; and (b) the one-year limitation period did not begin to run until June 22, 2015,
when the Colorado Supreme Court denied his writ of certiorari in his postconviction
proceedings. The Court denied the motion on March 2, 2016, finding that Mr. Steinhour
provided no justification why the Court should reconsider and vacate the order
dismissing this action as time-barred by the one-year limitation period, 28 U.S.C. §
2244(d)(1). The Court, however, granted Mr. Steinhour’s request for an extension of
time to file a notice of appeal, giving Mr. Steinhour thirty days from the March 2 order to
file a notice of appeal.
In his current motion for reconsideration, Mr. Steinhour argues that (a) he only
missed the one-year limitation period by approximately one month; and (b) he is entitled
to equitable tolling because he has been pursuing his rights diligently. (See ECF No.
17, at 2).
Upon consideration of the motion and the entire file, the Court finds that Mr.
Steinhour has not demonstrated some reason why the Court should reconsider and
vacate the order to dismiss this action. The Fed. R. Civ. P. 60(b) motion does not alter
the Court’s conclusion that this action properly was dismissed as time-barred by the
one-year limitation period, 28 U.S.C. § 2244(d)(1). Applicant is warned that any further
attempts to seek reconsideration of the February 5 dismissal order will be stricken from
Moreover, Mr. Steinhour’s request for an extension of time to file a notice of
appeal is denied because he fails to show excusable neglect or good cause under Fed.
R. App. P. 4(a)(5)(A)(ii). As previously ordered, Mr. Steinour must file his notice of
appeal within thirty days of the March 2 order.
Accordingly, it is
ORDERED that the [Second] Motion for Reconsideration (ECF No. 17) filed pro
se by Applicant, Archie R. Steinhour, on March 14, 2016, which the Court has treated
as a motion seeking relief from the judgment pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, is DENIED. It is
FURTHER ORDERED that Mr. Steinhour’s request for an extension of time to file
a notice of appeal is DENIED.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock, Senior Judge
United States District Court
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