Davis (ID 06598) v. Schmidt
MEMORANDUM AND ORDER ENTERED: Petitioner's motion to amend judgment 9 , motion for new trial and to amend judgment 10 , and motion to amend to conform to the evidence 11 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 07/25/17. Mailed to pro se party Anthony Leroy Davis by regular mail. (Attachments: # 1 Appellate Docket Sheet) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY LEROY DAVIS,
CASE NO. 17-3087-SAC
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in state custody. On June 6, 2017, the Court dismissed this matter
without prejudice due to petitioner’s apparent failure to exhaust
state court remedies.
Petitioner has filed a motion to amend judgment (Doc. #9), a
combined motion for new trial and motion to amend judgment (Doc. #10),
and a motion to amend to conform to the evidence (Doc. #11).
The Court liberally construes the motion to amend judgment as
a motion to alter or amend the judgment filed under Rule 59(e) of the
Federal Rules of Civil Procedure. Relief under this provision is
available only if the moving party can establish (1) an intervening
change in the controlling law, (2) new evidence that was previously
unavailable, or (3) a need to correct clear error or prevent manifest
injustice. See Hayes Family Trust v. State Farm Fire & Cas. Co., 845
F.3d 997, 1004 (10th Cir. 2017). A motion to alter or amend a judgment
is appropriate if the “court has misapprehended the facts, a party’s
position, or the controlling law.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
Petitioner’s motions, taken together, appear to argue that he
has exhausted state court remedies. However, the materials he submits
do not support this conclusion. Petitioner provides both an order
entered by the state district court dated June 14, 2017, (Doc. #14,
p. 7) in State of Kansas v. Anthony Davis, and an order entered on
May 24, 2017 in the Kansas Supreme Court denying review in Case No.
116,352, In Rem. Anthony Leroy Davis v. Joseph Norwood (Doc. #9, p.
5). The Court also has examined on-line records maintained by the
Kansas Appellate Courts and concludes that the relevant state-court
action filed by petitioner remains pending.1
Accordingly, the Court finds no reason to disturb the dismissal
without prejudice in this matter.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
amend judgment (Doc. #9), motion for new trial and to amend judgment
(Doc. #10), and motion to amend to conform to the evidence (Doc. #11)
IT IS SO ORDERED.
This 25th day of July, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
See attached appellate docket sheet in Case No. 115,714, Davis v. State of Kansas.
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