McIntyre v. McKune et al

Filing 21

ORDER ENTERED: Petitioner's motion 18 for reconsideration and supplemental motion 19 for reconsideration are treated as motions under Fed.R.Civ.P. 59(e) and denied. Petitioner's motion 20 to compel is denied as moot and any additional claims for relief from judgment contained therein are construed as a motion under Rule 60(b) and denied. Signed by Senior District Judge Sam A. Crow on 7/14/2011. (Mailed to pro se party Terry D. McIntyre by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERRY D. McINTYRE,
Petitioner,
v.

CASE NO.

08-3089-SAC

DAVID McKUNE, et al.,
Respondents.
O R D E R
This habeas corpus petition, 28 U.S.C. § 2254, was denied by
Memorandum and Order entered February 18, 2011.

The matter is

before the court upon petitioner’s Motion for Reconsideration (Doc.
18) filed on March 2, 2011; his Supplement to Motion (Doc. 19) filed
on March 8, 2011; and his Motion to Compel (Doc. 20) filed on May
16, 2011.

Having considered these filings, the court denies the

motions.
Mr. McIntyre does not specify the authority under which he
brings these motions.

The Tenth Circuit Court of Appeals has

discussed “self-styled” motions to reconsider:
A “motion for reconsideration, not recognized by the
Federal Rules of Civil Procedure, Clough v. Rush, 959 F.2d
182, 186 n. 4 (10th Cir. 1992), may be construed in one of
two ways: if filed within (28)1 days of the district
court’s entry of judgment, it is treated as a motion to
alter or amend the judgment under Rule 59(e); if filed
more than (28) days after entry of judgment, it is treated
as a motion for relief from judgment under Rule 60(b).”
Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d
1292, 1296 n. 3 (10th Cir. 2002).2
1

Since this opinion, the time period for filing a Rule 59(e) motion
was amended from 10 days to 28 days.
2

The distinction is significant because a Rule 59(e) motion tolls the
thirty-day period for appeal while a Rule 60(b) motion does not. Thus, an appeal
from the denial of a motion to reconsider construed as a Rule 59(e) motion permits
consideration of the merits of the underlying judgment, while an appeal from the

Accordingly,

the

court

construes

petitioner’s

Motion

for

Reconsideration and Supplement to Motion as filed pursuant to Rule
59(e) of the Federal Rules of Civil Procedure.
The Tenth Circuit has also explained that the district court
must

undertake

another

analysis

when

construing

a

motion

reconsider in the context of federal habeas corpus cases.

to
See

Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006)(considering
whether a Rule 60(b) motion was actually a second or successive §
2254 motion); see also United States v. Pedraza, 466 F.3d 932, 933
(10th Cir. 2006)(explaining that “Spitznas involved the interplay
between § 2254 and Rule 60(b)” and that “Rule 59(e) motions are
subject to the same characterization” as Rule 60(b) motions that
should be construed as second or successive habeas petitions). This
analysis is necessary because of the statutory bar to “relitigation
of claims presented in a prior (habeas) application, § 2244(b)(1),”
as

well

as

“litigation

application,

§

of

2244(b)(2)”

claims
where

not

such

presented
claims

were

in

a

prior

previously

available. Calderon v. Thompson, 523 U.S. 538, 553 (1998); see also
Winestock, 340 F.3d 200, 204 (4th Cir. 2003); Alley v. Bell, 101
F.Supp.2d 588, 669 (W.D. Tenn. 2000), aff’d, 307 F.3d 380 (6th Cir.
2002)(Where

a

Rule

59(e)

motion

reiterates

claims

previously

rejected, it falls within the category of cases proscribed by the
successive petition doctrine.).

Motions to reconsider cannot be

used to circumvent the strict requirements for filing a second or
successive § 2254 application.

See United States v. Sternberg, 5

denial of a Rule 60(b) motion does not.

2

Fed.Appx. 806, 808 (10th Cir. 2001)(unpublished);3 Lopez v. Douglas,
141 F.3d 974, 975-76 (10th Cir.)(per curiam), cert. denied, 525 U.S.
1024 (1998)(holding that petitioner’s Rule 60(b)(6) motion was an
implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to
file a second § 2254 petition in the district court).

Under this

analysis, the Tenth Circuit perceives of “no distinction” between
Rule 60(b) motions and Rule 59(e) motions that attempt to raise new
or relitigate already determined habeas claims.

U.S. v. Bovie, 28

Fed.Appx. 734, 735 (10th Cir. 2001)(unpublished); Ward v. Norris, 577
F.3d 925, 935 (8th Cir. 2009)(“Ward’s Rule 60(b) and Rule 59 motions
were improper because they were not based on a procedural defect,
but rather attacked previous habeas counsel’s omissions and asked
for

a

second

opportunity

to

have

the

merits

determined

favorably.”)(citing Gonzales, 545 U.S. at 532 n. 2); United States
v.

Martin,

132

Fed.Appx.

450,

curiam)(unpublished)(Defendant’s

451

(4th

“self-styled

Cir.

motion

2005)(per
under

Rule

59(e) is, in substance, a second motion attacking his conviction and
sentence under 28 U.S.C. § 2255.”); see generally Ochoa v. Sirmons,
485 F.3d 538, 540 (10th Cir. 2007)(describing Pedraza as “holding
post-judgment effort to raise new claim by motion under Rule 59(e)
is likewise equivalent of second or successive petition under §
2244(b).); but cf., Curry v. U.S., 307 F.3d 664, 665-66 (7th Cir.
2002)(and cases cited therein)(The court assumes that because a Rule
59(e) motion is not an effort to set aside a judgment that has
become final, it is not subject to the second and successive
statutory limitations of 28 U.S.C. § 2244 that apply to Rule 60(b)
3

Unpublished opinions are not cited herein as binding precedent but for
persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

3

motions.).

The court must therefore distinguish between Rule 59(e)

motions and second or successive habeas petitions that “merely
masquerade” as Rule 59(e) motions.

See Clemmons v. Davies, 198

Fed.Appx. 763 (10th Cir. 2006)(unpublished)(citing Spitznas, 464
F.3d at 1213).
A Rule 59(e) motion is a second or successive application “if
it in substance or effect asserts or reasserts a federal basis for
relief from the petitioner’s underlying conviction.”

With respect

to petitioner’s allegations that are second and successive, this
court simply has no jurisdiction to hear them unless the applicant
has first sought and obtained authorization from the Tenth Circuit
Court of Appeals to file a second successive petition.

The court

may determine whether or not to exercise its discretion to transfer
such allegations to the Tenth Circuit for authorization of a second
or successive petition or dismiss them for lack of jurisdiction.
See In re: Cline, 531 F.3d 1249 (10th Cir. 2008).
A motion to reconsider is a “true” Rule 59(e) motion “if it
either (1) challenges only a procedural ruling of the habeas court
which precluded a merits determination of the habeas application, or
(2) challenges a defect in the integrity of the federal habeas
proceeding, provided that such a challenge does not itself lead
inextricably to a merits-based attack on the disposition of a prior
habeas petition.” See Spitzas, 464 F.3d at 1216 (citing Gonzalez v.
Crosby, 545 U.S. 524 (2005)).

The court must rule on a true motion

as it would any other Rule 59(e) motion.

And, if the post-judgment

motion is “mixed”, that is a motion that contains both true Rule
59(e) allegations and second or successive habeas claims, the
district court must (1) address the merits of the true Rule 59(e)
4

allegations, and (2) treat the other claims as second or successive.
Spitznas, 464 F.3d at 1217.
Here, the court is faced with a “mixed” motion.
consideration

of

petitioner’s

motions

together

Upon careful

with

relevant

portions of the case file, the Court concludes that Mr. McIntyre
fails to demonstrate that this court should alter or amend the order
and judgment entered herein.

DISCUSSION
A. Reconsideration concerning original claims
In

his

motions,

petitioner

improperly

purports

to

simply

“incorporate” his entire Traverse and “habeas Corpus statement of
facts,” which amount to 90 pages that were already thoroughly
addressed by this court. If this court is being asked to reconsider
all the claims and arguments in these prior pleadings, this part of
the motion is clearly a second and successive application for habeas
corpus

relief.

In

any

event,

this

blanket

incorporation

of

petitioner’s prior pleadings is also not a sufficient statement of
any grounds that might entitle petitioner to relief from judgment
under Rule 59(e).
Petitioner specifically refers to his claims of ineffective
assistance of trial counsel.

His allegations immediately following

this initial reference make little sense.

His statements that the

district court erred in “denying defendant his right to issue a
subpoena duces tecum and to examine the medical records of the
agent” and erred “in imposing restrictions on discovery information
about the agent under 22-3212,” appear to summarize the holding of
a cited Kansas case only.

Mr. McIntyre does not allege sufficient
5

relevant facts from his own case.

In any event, he was already

advised that claims based on state law are not grounds for federal
habeas corpus relief.
Petitioner repeats his conclusory, self-serving statements that
“the DNA agent was the sole evidence to connect defendant with the
alleged crimes” and that the credibility of the absent agent was a
material issue.4

These allegations are habeas corpus claims, and as

such are second and successive subject to the preauthorization
requirement.
Petitioner alleges that he has a “statutory right to competent
counsel on post-conviction appeal” and it is not the province of a
federal habeas court to re-examine a state court determination of
state law.

This is another habeas claim that is second and

successive,5 as well as without merit.
Petitioner cites case law “where the state courts plainly
misapprehend or misstate the record in making findings . . .”

He

then alleges that the state court fact-finding process is undermined
where the state court ignores evidence before it.

Finally, he

states that the undersigned judge “adopted the same process as the
state fact-finding.”

Petitioner’s allegations regarding the state

court’s fact finding are either predetermined or new habeas corpus
claims

that

are

subject

to

the

threshold

preauthorization

4

This court previously rejected both assertions. The DNA evidence
presented at trial was not the sole evidence to connect Mr. McIntyre with the
crimes. If by “the absent agent” petitioner means the DNA analyst who operated
the computer program that produced the tables, which were analyzed by the DNA
expert that testified at trial, no facts were ever presented to challenge her
credibility or that of the expert trial witness.
5

Petitioner’s implication that this court’s holding that he had no
federal constitutional right to counsel in state post-conviction proceedings was
erroneous may be more akin to a true Rule 59(e) claim. However, he is mistaken
under current Supreme Court precedent previously cited by the court.

6

requirement.6
In his Supplemental Motion, petitioner argues that it was
“manifestly unfair for the district court to deny entire 1507 based
on DNA results.”

Again, this is a repetitive habeas corpus claim,

that was already considered and rejected by this court.7
Petitioner

makes

no

showing

that

he

sought

and

obtained

preauthorization from the Circuit Court of Appeals to file a second
and successive application in this court.8

As a consequence, this

court lacks jurisdiction to hear either his new or previously
adjudicated habeas claims.

The court further finds that it would

not be in the interest of justice for this court to transfer this
motion to the Tenth Circuit for consideration of preauthorization.
The court believes that it could simply deny these portions of
petitioner’s motion “as beyond the scope of” Rule 59(e). See Harris
v. United States, 367 F.3d 74, 82 (2d Cir. 2004); Gitten v. United
States, 311 F.3d 529, 534 (2d Cir. 2002))(“There is no practical
distinction of which the Court is aware between declining to
transfer a second or successive Section 2255 petition that is

6

Petitioner’s suggestion that this court adopted the allegedly improper
fact finding process of the State may be more akin to a true 59(e) motion.
However, no supporting facts are alleged to establish petitioner’s entitlement to
relief from judgment on this basis.
7

To any extent that Mr. McIntyre may be attempting to bring a new
claim, it would require a new § 2254 motion, which Mr. McIntyre could not file
without first obtaining permission from the Circuit Court.
See 28 U.S.C. §
2244(b)(3).
8

In order to obtain authorization to file a second § 2254 motion in the
district court, Mr. McIntyre must make the showing required by 28 U.S.C. §
2244(b)(2)(A) or (B)(i) or (ii). Specifically, he must show (1) “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” or (2) that “the factual predicate for the
claim could not have been discovered previously through the use of due diligence”
or that the facts underlying the claim, if proven, would be “sufficient to
establish by clear and convincing evidence that, but for the constitutional error,
no reasonable factfinder would have found the applicant guilty of the underlying
offense.” Id. This showing must be made to the Tenth Circuit, not this court.

7

contained within a Rule 60(b) motion to the appellate court and
denying the motion as outside the scope of Rule 60(b), and for
whatever purposes such a distinction might be relevant, this order
should be construed as resting on both grounds.”); Schwamborn v.
U.S., 507 F.Supp.2d 229, 242 n. 22 (E.D.N.Y. 2007).

B.

Reconsideration concerning true 59(e) claims

As to petitioner’s “true” Rule 59(e) motion claims, the court
applies the following standards.

The purpose of a motion to alter

or amend judgment under Rule 59(e) is to have the court reconsider
matters “properly encompassed in a decision on the merits.”
Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1988).

See

A motion

to alter or amend is appropriately used to challenge the correctness
of a court’s judgment by arguing that the district court has
misapprehended the facts, a party’s position, or the controlling
law.

See Van Skiver v. U.S., 952 F.2d 1241, 43-44 (10th Cir. 1991),

cert. denied, 506 U.S. 828 (1992); Barber ex rel. Barber v. Colo.
Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)(quoting
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000).

The three main grounds for reconsideration are: (1) an

intervening change in controlling law; (2) the availability of new
evidence; and (3) the need to correct clear error or prevent
manifest injustice.

See id.

Rule 59(e) relief is not warranted

where a party simply reiterates arguments previously considered and
rejected in the underlying ruling.

See e.g., Mincey v. Head, 206

F.3d 1106, 1137 n. 69 (11th Cir. 2000)(explaining that “[t]he
function of a motion to alter or amend a judgment is not to serve as
a vehicle to relitigate old matters”); In re Worlds of Wonder
8

Securities Litigation, 814 F.Supp. 850, 874 (N.D. Cal. 1993)(Rule
59(e) motion “is not the proper vehicle for revisiting issues that
were decided” or for “recapitulation of the cases and arguments
considered by the court before rendering its original decision.”).
The Tenth Circuit has specifically held that arguments challenging
the district court’s failure to rule on certain issues are “true”
arguments and not second or successive habeas petitions.

See

Spitznas, 464 F.3d 1213, 1225 (10th Cir. 2006); Peach v. United
States, 468 F.3d 1269, 1271 (10th Cir. 2006).

The party seeking

relief from judgment bears the burden of demonstrating that he
satisfies the prerequisites for such relief.

Van Skiver, 952 F.2d

at 1243-44.
Petitioner makes bald statements in his motions, for example,
“new evidence previously unavailable.”

These statements are not

accompanied by any factual basis or legal argument to establish his
entitlement to relief from judgment.

Petitioner does not describe

any new evidence or cite to a change in the controlling law.
Instead, he appears to be claiming manifest injustice or the need to
correct clear error.
In its Memorandum and Order dismissing this action, the court
found that many of petitioner’s claims were procedurally defaulted
including

his

claims

appellate counsel.

of

ineffective

assistance

of

trial

and

In his first Motion to Reconsider, petitioner

argues that he “can overcome” procedural default by persuading the
court that trial and appellate counsel were ineffective in failing
to raise claims at trial and on direct appeal.

In his Supplemental

Motion, petitioner mainly challenges this court’s holdings that his
claims

of

ineffective

assistance
9

of

counsel

were

procedurally

defaulted in state court.

Petitioner’s challenges to this court’s

findings of procedural default that precluded a merits determination
are “true” Rule 59(e) claims.

Gonzales, 545 U.S. at 532 n. 4.

Petitioner contends that this court erroneously found that
these claims were not fully and properly presented to the Kansas
Supreme Court on either direct or collateral appeal and that the
court misapprehended “the facts of his federal habeas petition.” In
support, he again refers to the “Original Habeas Corpus” he filed in
the Kansas Supreme Court pursuant to Kansas Supreme Court Rule
9.01(a). In his Traverse at pages 12-14, petitioner stated that the
claim

raised

in

this

original

state

action

was

ineffective

assistance of appellate post-conviction counsel, and argued that he
had established before the state courts that this was cause for the
default of his other claims.

As petitioner was informed in the

court’s prior Memorandum and Order:
ineffective assistance adequate to establish cause for the
procedural default of some other constitutional claim is
itself an independent constitutional claim . . . [and] .
. . generally must be presented to the state courts as an
independent claim before it may be used to establish cause
for a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)(internal quotation
marks omitted).
Elsewhere in his motions, Mr. McIntyre similarly argues that
the Kansas Supreme Court’s decision was on the merits of his claim
of ineffective assistance of appellate post-conviction counsel and
that it also “constituted a finding on the merits of (his) otherwise
arguably defaulted claims.” This court found from the record before
it that petitioner had presented the former claim only, and had not
included any of the grounds upon which his claims of ineffective
10

assistance of trial and appellate counsel were based to the Kansas
Supreme Court.

Petitioner does not convince the court that this

finding was erroneous either factually or legally.9

Accordingly,

the court concludes that Mr. McIntyre has not established his
entitlement to relief from judgment on this basis.

9
The Tenth Circuit clearly reasoned in Bloom v. McKune, 130 Fed.Appx.
229, 232-33 (10th Cir. 2005)(unpublished):

An applicant must exhaust state-court remedies prior to seeking
federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). To satisfy this
requirement, an applicant “must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999). This includes discretionary review by the state
supreme court. Id. Moreover, the presentation must conform to state
rules regulating how such claims are to be presented.
“Section
2254(c) requires only that state prisoners give state courts a fair
opportunity to act on their claims. See Castille v. Peoples [489
U.S. 346,] at 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 [1989].” Id. at
844. In Castille the Court found that the claim was not exhausted
when it was presented only in a procedural context in which it would
not ordinarily be considered. Castille, 489 U.S. at 351. “Raising
the claim in such a fashion does not, for the relevant purpose,
constitute ‘fair presentation.’ See Ex parte Hawk, 321 U.S. 114, 64
S.Ct. 448, 88 L.Ed. 572 (1944) (application to Nebraska Supreme Court
for original writ of habeas corpus does not exhaust state remedies).”
Id.
The applicant bears the burden of establishing proper
exhaustion. Olson v. McKune, 9 F.3d 95 (10th Cir.1993).
Applicant presented some of his claims to the trial court in the form
of post-trial (but not post-sentencing) motions that were denied at
the sentencing hearing.
But he did not pursue the claims in his
direct appeal, thus failing to properly exhaust them in the
direct-appeal process.
He also raised some of the same claims in two habeas petitions filed
directly with the Kansas Supreme Court after he was sentenced and
imprisoned.
But directly petitioning the Supreme Court did not
comply with the procedural requirements of Kansas law.
Kansas
Statute Annotated § 60-1507 (2003) provides the exclusive remedy for
post-conviction relief (except for certain sentencing issues, see
Kan. Stat. Ann. § 22-3504) when a prisoner is in custody under a
sentence, see Smith v. State, 199 Kan. 132, 427 P.2d 625, 627 (1967),
and a petition under that section must be filed in the sentencing
court. § 60-1507(a). Applicant makes no claim, much less a showing,
that he complied with this requirement by filing for relief in the
sentencing court-which is likely why the Kansas Supreme Court
summarily dismissed both his habeas petitions.
Thus, Applicant's
presentation of claims in his habeas petitions to the Kansas Supreme
Court did not give Kansas courts a fair opportunity to act, and his
claims were not properly exhausted. See Castille, 489 U.S. at 351.
Id.

11

Furthermore, this court also found in its prior Memorandum and
Order that if it were to consider petitioner’s claims of ineffective
assistance of trial and appellate counsel on the merits, they would
be found to have no merit.
In short, petitioner merely restates his claims of ineffective
assistance of counsel and erroneous or insufficient findings by the
state courts.

The reasons for this court’s dismissal under the

applicable habeas corpus standards were fully explained in its
Memorandum

and

Order

denying

this

petition.

Mr.

McIntyre’s

disagreement with the findings and rulings of this court fail to
demonstrate his entitlement to relief under Rule 59(e) as he has not
shown any manifest error.

See Committee for First Amendment v.

Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992)(purpose of Rule 59(e)
is to correct manifest errors of law).

C.

Motion to Compel

Petitioner’s Motion to Compel seeks a ruling on his two prior
pending motions, and is now denied as moot.
also

contains

additional

allegations

This motion improperly

that

might

be

liberally

construed as asserting grounds for relief from judgment.

This

motion was not filed within 28 days of the judgment entered herein.
Consequently, any grounds for relief from judgment raised in this
motion would only be considered under Fed.R.Civ.P. Rule 60(b).

To

the extent that any additional allegations in this pleading are
habeas corpus claims, they are second and successive and subject to
the preauthorization prerequisite, and thus are inappropriate for
consideration by this court in a Rule 60(b) motion.

To the extent

petitioner is claiming that this court overlooked facts and evidence
12

that supported his claims, he does not provide factual allegations
or legal arguments that show he is entitled to relief from judgment
under any of the grounds set forth in Rule 60(b).
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s Motion
for

Reconsideration

(Doc.

18)

and

Supplemental

Motion

for

Reconsideration (Doc. 19) are treated as motions under Fed.R.Civ.P.
59(e) and denied.
IT IS FURTHER ORDERED that petitioner’s Motion to Compel (Doc.
20) is denied as moot, and that any additional claims for relief
from judgment contained therein are construed as a motion under Rule
60(b) and denied.
IT IS SO ORDERED.
Dated this 14th day of July, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

13