Beauclair v. Goddard et al

Filing 40

MEMORANDUM AND ORDER denying 39 Motion of Petitioner for Reconsideration of 37 Memorandum & Order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 3/13/2013. Mailed to pro se party: Mr. Danny E. Beauclair, Reg. No. 74638, El Dorado Correctional Facility-Oswego SEU, 2501 W. 7th Street, Oswego, KS 67356 by regular mail. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANNY E. BEAUCLAIR,
Petitioner,
v.

Case No. 10-3128-SAC

JOHNNIE GODDARD, et al.,
Respondents.

MEMORANDUM AND ORDER
This habeas case comes before the Court on Petitioner’s motion for
reconsideration of the Court’s denial of his habeas petition.
Standard for Motion to Reconsider
The Federal Rules of Civil Procedure do not specifically provide for a
motion for reconsideration. See Hatfield v. Bd. Of County Comm'rs for
Converse County, 52 F.3d 858, 861 (10th Cir. 1995). The court considers a
motion to reconsider as either a motion to alter or amend filed pursuant to
Rule 59(e) or a motion for relief from judgment filed pursuant to Rule 60(b),
depending on its filing date. Because petitioner filed this motion within 28
days from the entry of judgment, the court treats it as filed pursuant to Rule
59(e). Petitioner must therefore show (1) an intervening change in the
controlling law; (2) new evidence that could not have been produced
previously by due diligence; or (3) the need to correct clear error or prevent

manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). Petitioner asserts only the latter.
Proper Level of Deference
Petitioner contends that the Court erred in finding his claims had been
adjudicated on the merits in state court and in applying a deferential
standard of review. Petitioner appears to believe that state court decisions
made without an evidentiary hearing are not decisions on the merits.
The Supreme Court does not share Petitioner’s narrow view of what
constitutes a decision on the merits. See Johnson v. Williams, 506 U.S. __,
2013 WL 610199 (Feb. 20, 2013). AEDPA's deferential standards of review
apply even absent evidentiary hearings and do not even require an opinion
from the state court explaining its reasoning. Harrington v. Richter, __ U.S.
__, 131 S.Ct. 770, 784 (2011). AEDPA standards do require the state court
to review and evaluate the evidence of record and the parties' substantive
arguments. Johnson, 2013 WL 610199, at 8. The state court did so in this
case, ruling on the merits of the same claims which this court properly
reviewed deferentially.
Procedural Default
Petitioner challenges this Court’s finding that some of his claims were
procedurally defaulted, contending that any failure is excused by judicial
estoppel, fraud, futility, and interference by state court officials. Petitioner
asserts interference by the State’s defense of res judicata and by the KCOA’s
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finding that Petitioner failed to show manifest injustice or exceptional
circumstances (2010 WL 596992 at *4). Petitioner erroneously asserts that
any such finding could be made only by the trial court and not by the KCOA.
These asserted exceptions could have been raised earlier. This motion
is not to be used to rehash previously rejected arguments or to offer new
legal theories or facts that could have been offered previously. Achey v. Linn
County Bank, 174 F.R.D. 489, 490 (D.Kan. 1997). Nor is a motion to
reconsider “a second chance for the losing party to make its strongest case
or to dress up arguments that previously failed.” Voelkel v. Gen. Motors
Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.
1994).
Plea Hearing Errors
Petitioner asserts that because in Kansas, due process requires the
district court to inform a defendant at the plea hearing of the maximum
possible sentence, he had a state-created right under Hicks v. Okla, 447
U.S. 343 (1980). But violation of a state-created right, even if it exists, is
not a basis for habeas relief, since habeas review is limited to violations of
federal constitutional rights. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Petitioner also contends that accepting a plea and thus convicting him
without any factual basis cannot be cured after the fact. But this is “the kind
of problem that the Due Process Clause is well suited to cure.” Blakely v.
Washington, 542 U.S. 296, 344 (2004). The opportunity to be heard is “an
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opportunity which must be granted at a meaningful time and in a meaningful
manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Here, as the Court
previously found, any deprivation was harmless and was timely cured
because the trial court accepted the plea court only momentarily before
realizing its error, then immediately went back on the record to have the
prosecution present the factual basis for the plea and the Petitioner affirm its
truth.
Innocence
Petitioner alleges that in addressing his claim of actual innocence, the
Court erred in relying on Herrera v. Collins, 506 U.S. 390 (1993), when
Petitioner also relied on Schlup v. Delo, 513 U.S. 298 (1995). In Herrera, the
petitioner alleged a substantive constitutional claim that the execution of an
innocent person pursuant to even an error-free trial would violate the Eighth
Amendment. In Schlup, the petitioner raised a claim of actual innocence to
avoid a procedural bar to the consideration of the merits of his other
constitutional claims.
The Court’s decision addressed Petitioner’s claim of alleged innocence
both as a substantive claim, and as Schlup gateway claim. No error in that
analysis has been shown.
Evidentiary issues
Petitioner contends that the Court failed to consider the facts he
alleged in his verified pleadings. But it is not the prerogative of this Court to
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weigh the facts. Instead, it must presume that the state court's factual
findings are correct, absent clear and convincing evidence to the contrary.
28 U.S.C. § 2254(e)(1); Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004).
Petitioner also objects to this court’s reference to his counsel’s
affidavit, which stated that she informed Petitioner of the correct possible
sentences before his plea hearing. Petitioner believes the affidavit is
hearsay, was not drafted by counsel, was not read by counsel before she
signed it, and is fraud upon the court. But any evidentiary objections to the
affidavit should have been lodged in state court and are not a basis for
habeas relief. A reviewing court may not usurp the role of the finder of fact
by considering how it would have resolved the conflicts, made the
inferences, or considered the evidence at trial. See Jackson v. Virginia, 443
U.S. 307, 318–19 (1979); Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir.
1993).
Concerning the victim’s affidavit recanting her testimony, Petitioner
invites the Court to ignore the recantation and to use statements by the
victim and the Petitioner which are not included in the record. Alternatively,
Petitioner invites the Court to rely on Kansas cases dealing with recantation,
saying the court should determine its truth by holding an evidentiary
hearing. Dk. 39, p. 13. Again, it is not the role of this Court on habeas
review to weigh the evidence, to determine credibility, or to rule upon the
admission of evidence. “[T]he assessment of the credibility of witnesses is
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generally beyond the scope of review.” Schlup, 513 U.S. at 330. See Wright
v. West, 505 U.S .277, 296–97 (1992).
Petitioner also contends that this Court’s own denial of an evidentiary
hearing was error because disputed material facts require a full hearing.
Specifically, Petitioner seeks to challenge the reliability of counsel’s affidavit
regarding her advice to Petitioner on the potential length of his sentence,
and the truth of the victim’s affidavit recanting her testimony. Underlying
this argument is Petitioner’s erroneous belief that the record consists solely
of testimony given from the witness stand, and not of affidavits, verified
pleadings, or other matters. Dk. 39, p. 15. But this Court properly found that
the record was sufficient to resolve the claims raised by Petitioner, given its
limited scope of review.
Conclusion
Petitioner has not shown the need to correct clear error or prevent
manifest injustice.
IT IS THEREFORE ORDERED that Petitioner’s motion for
reconsideration is denied.
Dated this 13th day of March, 2013, at Topeka, Kansas.

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

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