Reed (ID 101360) v. Cline et al

Filing 34

MEMORANDUM AND ORDER ENTERED: Petitioner Samuel L. Reed's Motion to Alter or Amend Judgment 24 is denied. Petitioner Samuel L. Reed's Motion for Leave to Appeal in forma pauperis 26 is granted. Signed by District Judge Daniel D. Crabtree on 09/21/17. Mailed to pro se party Samuel L. Reed by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SAMUEL L. REED,
Petitioner,
v.
Case No. 16-3208-DDC
SAM CLINE, et al.,
Respondents.

MEMORANDUM AND ORDER
On July 14, 2017, the court denied petitioner Samuel L. Reed’s Petition for Writ of
Habeas Corpus (Doc. 22) and entered Judgment (Doc. 23). On August 11, 2017, petitioner filed
a Motion to Alter or Amend the Judgment under Fed. R. Civ. P. 59(e) (Doc. 24). Petitioner also
has filed Objections to Finding of Facts and Conclusions of Law (Doc. 29),1 a Supplement to his
Motion to Alter or Amend Judgment (Doc. 30), and an Additional Motion for Reconsideration
(Doc. 33). These filings all assert that the court erred when it denied his petition for federal
habeas corpus relief under 28 U.S.C. § 2254. Petitioner also filed a Motion for Leave to Appeal
in forma pauperis (Doc. 26). For reasons explained below, the court denies petitioner’s Motion
to Alter or Amend Judgment but grants his Motion for Leave to Appeal in forma pauperis.
Rule 59(e) allows a party to file a motion to alter or amend a judgment no later than 28
days after entry of judgment. A court may grant a motion to alter or amend a judgment under
Rule 59(e) on one of the following three grounds: “(1) an intervening change in the controlling
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While petitioner filed his Objections under the guise of Federal Rule of Civil Procedure 52, this relief is not
available to petitioner. See Trentadue v. Integrity Comm., 501 F.3d 1215, 1237 (10th Cir. 2007) (“[Rule 52],
however, applies only to cases in which a district court issues factual findings following a trial on the merits.”).
However, the court construes Doc. 29 as a Supplement to petitioner’s Motion to Alter or Amend Judgment because
the court must construe pro se documents liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro
se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted
by lawyers.”).

law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1153 (10th Cir.
2012). A Rule 59(e) motion is “appropriate where the court has misapprehended the facts, a
party’s position, or the controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). “It is not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.” Id. (citing Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991)). Petitioner claims the court made “manifest errors of law and fact.”
Doc. 30 at 1.
Petitioner contends the court should amend or alter its judgment for four reasons. The
court analyzes each one, below, in turn.
First, petitioner argues the court misconstrued Kansas law governing a witness’s
availability. If a witness is unavailable, Kansas courts allow the admission of certain types of
hearsay statements into evidence. Kan. Stat. Ann. § 40-460(c). Specifically, petitioner argues
that the court should have found that the state district court impermissibly admitted hearsay into
evidence when the declarant was not unavailable. Doc. 29 at 6. According to petitioner, the
state district court should have ordered the declarant to testify before finding him unavailable.
Id. However, the Kansas Supreme Court already has held that a trial judge does not need to
order a declarant to testify to find a declarant unavailable. State v. Reed, 352 P.3d 530, 544
(Kan. 2015). The court did not misconstrue state law by following the law adopted by the state’s
highest court. And even if it had erred, “federal habeas corpus relief does not lie for errors of
state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
Petitioner’s last four arguments do not justify a need to amend or alter the court’s earlier
order. First, petitioner argues the court erred in finding his Sixth Amendment right to a public

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trial was violated. Doc. 30 at 2. Second, petitioner argues the court erred in finding Mr. Pittman
did not provide ineffective assistance of counsel when he did not object to the admission of Mr.
Becknell’s hearsay testimony. Id. at 4. Third, petitioner argues the court erred by finding Mr.
Pittman did not provide ineffective assistance of counsel when he did not object to the
prosecutor’s attempt to bolster a witness’s credibility. Id. at 5. Last, petitioner argues the court
erred by finding petitioner’s right to confront witnesses against him was not violated. Doc. 33 at
3. Petitioner’s arguments on these issues are essentially the same ones he advanced in his
original briefing. He has not shown “an intervening change in the controlling law, new evidence
previously unavailable, [or] the need to correct clear error or prevent manifest injustice.” The
court thus denies petitioner’s Motion to Amend or Alter the Judgment.
Petitioner also filed a Motion for Leave to Appeal in forma pauperis. Doc. 26. Neither
habeas corpus proceedings, nor the appeals of those proceedings, are subject to the Prison
Litigation Reform Act or its filing fees. See United States v. Simmonds, 111 F.3d 737, 743–44
(10th Cir. 1997), rev'd on other grounds, United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003).
The court thus grants petitioner’s Motion for Leave to Appeal in forma pauperis (Doc. 26).
IT IS THEREFORE ORDERED BY THE COURT THAT petitioner Samuel L.
Reed’s Motion to Alter or Amend Judgment (Doc. 24) is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT petitioner Samuel L.
Reed’s Motion for Leave to Appeal in forma pauperis (Doc. 26) is granted.
IT IS SO ORDERED.
Dated this 21st day of September 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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