Sandlain v. English
MEMORANDUM AND ORDER ENTERED: Petitioner's motion for reconsideration 6 is construed as a motion filed under Rule 59(e) of the Federal Rules of Civil Procedure and is denied. Petitioner is denied leave to proceed on appeal in forma paujperis. Signed by District Judge John W. Lungstrum on 07/13/17. Mailed to pro se party Blake Sandlain by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3103-JWL
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241 by a prisoner in federal custody. On June 23, 2017, the Court
denied relief. On July 3, 2017, petitioner filed a motion for
reconsideration (Doc. #6) and a pleading captioned as Judicial Notice
to the Court (Doc. #7). On July 7, 2017, he filed a Notice of Appeal
The Motion for Reconsideration
The Court liberally construes the motion for reconsideration and
the accompanying request for judicial notice as a motion to alter or
amend the judgment filed under Rule 59(e) of the Federal Rules of Civil
Procedure. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997)(where a motion concerns “reconsideration of matters properly
encompassed in a decision on the merits” it is examined under Rule
Relief under Rule 59(e) is limited and may be granted only if
the moving party establishes “(1) an intervening change in the
controlling law, (2) new evidence [that was] previously unavailable,
[or] (3) the need to correct clear error or prevent manifest
injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). However, reconsideration is “not available to allow
a party to reargue an issue previously addressed by the court when
the reargument merely advances new arguments or supporting facts which
were available for presentation at the time of the original argument.”
FDIC v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir.
1998)(quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th
In the motion for reconsideration, petitioner concedes that the
decision in Mathis v. United States, 136 S.Ct. 2243 (2016) does not
apply retroactively on collateral review. He contends instead that
the Mathis ruling is a “watershed” ruling and that, as such, it should
be applied retroactively. The Court rejects this argument. As the
Court explained in the Memorandum and Order denying relief, the case
law in this Circuit and in the Sixth Circuit, where petitioner was
convicted, has held that the Mathis decision did not announce a new
rule of constitutional law and does not apply retroactively on
collateral review. See United States v. Taylor, 672 Fed.Appx. 860,
864 (10th Cir. 2016)(collecting cases) and Proctor v. United States,
2017 WL 2802174, at *2 (W.D. Ky. June 28, 2017)(“The Supreme Court’s
decision in Mathis did not create a new rule of law which applies
retroactively to cases on collateral review.”).
Petitioner filed no appeal following his guilty plea, and he has
sought relief twice under 28 U.S.C. § 2255. Petitioner may now seek
collateral relief under the Mathis decision only if it is determined
to be a new rule that applies retroactively on collateral review1, and
Where a new rule of law is created, 28 U.S.C. 2255(f)(3) provides that the one-year
limitation period for filing runs from “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral
there is no authority in this Circuit for such application. Petitioner
has not identified any contrary authority, and the Court finds no basis
to allow this matter to proceed under 28 U.S.C. § 2241 or to warrant
its transfer to the district of his conviction. The Court therefore
will deny the motion for reconsideration.
The Notice of Appeal
As a federal prisoner, petitioner is not required to obtain a
certificate of appealability in order to seek review of the denial
of relief in an application for habeas corpus filed under 28 U.S.C.
§ 2241. Hale v. Fox, 829 F.3d 1162, 1165, n. 1 (10th Cir. 2010).
Finally, because the petitioner’s Notice of Appeal does not
suggest that he presents “a reasoned, nonfrivolous argument on the
law and facts”, the Court denies leave to proceed on appeal in forma
pauperis. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
reconsideration (Doc. #6) is construed as a motion filed under Rule
59(e) of the Federal Rules of Civil Procedure and is denied.
IT IS FURTHER ORDERED petitioner is denied leave to proceed on
appeal in forma pauperis.
IT IS SO ORDERED.
This 13th day of July, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge
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