McNelly (ID 69108) v. Cline et al

Filing 17

MEMORANDUM AND ORDER ENTERED: Petitioner's motion to alter or amend judgment 15 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 12/13/17. 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 before the Court on petitioner’s third motion to
alter or amend judgment (Doc. #15).
A motion to alter or amend may be granted where the moving party
shows there is an intervening change in the governing law, there is
new evidence that was not previously available, or there is a need
to correct clear error or prevent manifest injustice. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
The Court has examined the motion and finds that petitioner is
not entitled to relief. Petitioner did not file this motion within
28 days of the judgment, as required by Rule 59(e) of the Federal Rules
of Civil Procedure, nor does he present any claim that was not
available earlier, as his argument arises from the Court’s statement
of the background of his case in its order entered on November 3, 2017.
Finally, nothing in petitioner’s present motion persuades the Court
that he has established a basis for equitable tolling that would allow
this time-barred petition for habeas corpus to proceed.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
alter or amend judgment is denied.

IT IS SO ORDERED.
DATED:

This 13th day of December, 2017, at Topeka, Kansas.

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