Payton (ID 66352) v. Werholtz et al
MEMORANDUM AND ORDER ENTERED: Petitioner's motion 7 for reconsideration is construed as a motion pursuant to Fed.R.Civ.P. 59(e) and is denied. Signed by Senior District Judge Sam A. Crow on 5/21/2013. (Mailed to pro se party Walter Almon Payton by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WALTER ALMON PAYTON,
CASE NO. 13-3066-SAC
ROGER WERHOLTZ, et al.,
MEMORANDUM AND ORDER
This matter is before the court on petitioner’s motion for
reconsideration (Doc. 7). Petitioner seeks relief from the court’s
order dismissing this successive application for habeas corpus.
A party seeking reconsideration of an 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 filed pursuant to Rule 59(e) must be filed within
twenty-eight days from the time judgment is entered. Fed.R.Civ.P.
59(e). Accordingly, because petitioner filed the instant motion on
the day following the entry of judgment, the court construes the motion
as a motion pursuant to Rule 59(e).
Generally, the grounds for granting reconsideration are “(1) an
intervening change in the controlling law; (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent
manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000).
The court dismissed this matter upon finding that petitioner had
not obtained the necessary authorization from the U.S. Court of
Appeals for the Tenth Circuit to proceed in a successive application
for habeas corpus. See 28 U.S.C. § 2244(b)(2).
Petitioner’s motion does not address that point; rather, he
broadly alleges that the district court judgment was rendered without
jurisdiction1, that trial counsel provided ineffective assistance,
and that the affidavit of probable cause was falsified. These
arguments allege flaws in the state criminal proceedings against
petitioner, but they do not address the basis for the dismissal of
this matter, namely, petitioner’s failure to follow the mandatory
procedure of obtaining authorization from the federal appellate court
to pursue a successive application for habeas corpus. The court finds
no basis to grant relief and denies petitioner’s motion.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
reconsideration (Doc. 7) is construed as a motion pursuant to
Fed.R.Civ.P. 59(e) and is denied.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
This 21st day of May, 2013, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
The court construes this to challenge the action of the state district court in
petitioner’s criminal case.
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