McNelly (ID 69108) v. Cline et al

Filing 11

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to alter or amend 6 is denied. The Court declines to issue a Certificate of Appealability. Signed by U.S. Senior District Judge Sam A. Crow on 11/29/17. Mailed to pro se party Kenneth David McNelly by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH DAVID McNELLY,
Petitioner,
v.

CASE NO. 17-3141-SAC

SAM CLINE,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. On November 11, 2017, the Court dismissed this matter, finding
the matter was not timely filed and that petitioner had shown no ground
for equitable tolling.
On November 16, 2017, petitioner filed a motion to alter or amend
judgment (Doc. #6) and a Notice of Appeal (Doc. #7). On November 24,
2017, the Tenth Circuit abated the appeal pending this court’s
decision on whether a certificate of appealability should issue in
this matter and for a ruling on petitioner’s motion to alter or amend.
The motion to alter or amend
Plaintiff’s motion to alter or amend alleges error in the
background information described by the Court; he also claims he has
newly-discovered evidence in support of his claim of actual innocence.
A motion to alter or amend must be filed no later than 28 days
following the entry of judgment. Fed.R.Civ.P. 59(e). The Court may
grant relief where the moving party shows “(1) an intervening change
in the controlling law, (2) new evidence 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).
The remedy provided by Rule 59(e) is “extraordinary” and “is
designed to permit relief in extraordinary circumstances and not to
offer a second bite at the proverbial apple.” Syntroleum Corp. v.
Fletcher Int’l, Ltd., 2009 WL 761322 *1 (N.D. Okla. Mar. 19, 2009).
Petitioner first asks the Court to correct an error in the factual
background of his case. However, the information stated by the Court
appears in the brief prepared by petitioner’s defense counsel and
attached to his response to the Order to Show Cause. See Doc. 3, Ex.
1, p. 5. Petitioner provides no evidence to the contrary and is not
entitled to relief on this argument.
Petitioner also claims that he has obtained a statement from the
victim of the crime exonerating him. An equitable exception to the
statute of limitations in habeas corpus is available when a petitioner
presents new evidence that “shows it is more likely than not that no
reasonable juror would have convicted the petitioner.” McQuiggin v.
Perkins, 569 U.S. 383, ___, 133 S.Ct. 1924, 1933 (2013). This showing
requires “evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional
error.” Id. at 1936 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Here, the material petitioner provides is an undated letter1 that
does not provide an adequate basis for a finding that based upon
newly-discovered evidence, no reasonable juror would have convicted
petitioner. The Kansas appellate decision addressing petitioner’s
third post-conviction action, filed under K.S.A. 60-1507 in 20102,
1

The letter is attached to the Notice of Appeal (Doc. #7).
McNelly v. State, 302 P.3d 44 (Table), 2013 WL 2918485 (Kan.App. Jun 7, 2013),
rev. denied, Nov. 22, 2013.
2

reflects that the victim recanted her trial testimony during a hearing
on petitioner’s second motion for a new trial and that petitioner
argued that point on appeal in 2002. See McNelly, 2013 WL 2918485 *1
(discussing factual and procedural history of petitioner’s criminal
case).

The letter petitioner now presents concerning the victim’s

recantation clearly does not constitute newly-discovered evidence.
The Court will deny the motion to alter or amend the judgment.
Certificate of Appealability
A certificate of appealability (COA) is a prerequisite to
appellate jurisdiction in a habeas corpus action. Lockett v. Trammel,
711 F.3d 1218, 1230 (10th Cir. 2013). A COA may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
As here, when a district court’s ruling is based on procedural
grounds, the petitioner must show both “that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court finds no ground to grant a COA in this matter.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
alter or amend (Doc. #6) is denied.
IT IS FURTHER ORDERED the Court declines to issue a Certificate
of Appealability.
The Clerk of the Court shall transmit this order to the parties
and to the Clerk of the U.S. Court of Appeals for the Tenth Circuit.

IT IS SO ORDERED.
DATED:

This 29th day of November, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge