Burdick (ID 32858) v. Attorney General of Kansas

Filing 29

MEMORANDUM AND ORDER overruling 28 Motion to Alter Judgment. Signed by District Judge Kathryn H. Vratil on 7/22/19. Mailed to pro se party Benjamin Burdick by regular mail. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BENJAMIN BURDICK,

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Petitioner,
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WARDEN SAM KLINE,
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Respondent.
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____________________________________________)

CIVIL ACTION
No. 17-3148-KHV

MEMORANDUM AND ORDER
On July 7, 2009, in the District Court of Crawford County, Kansas, Benjamin Burdick was
sentenced to 324 months in prison for multiple drug-related convictions and endangering a child.
On January 29, 2019, this Court denied Burdick’s pro se Amended Petition Under 28 U.S.C.
§ 2254 For Writ Of Habeas Corpus By A Person In State Custody (Doc. #6) filed September 20,
2017. See Memorandum And Order (Doc. #26). This matter is before the Court on Burdick’s
Motion And Memorandum To Alter/Amend Judgment (Fed. R. Civ. P. 59) (Doc. #28) filed
February 26, 2019. For reasons stated below, the Court overrules petitioner’s motion.
Legal Standards
A Rule 59(e) motion to alter or amend judgment is essentially a motion for reconsideration.
The Court has discretion to reconsider a final decision if the moving party can establish (1) an
intervening change in the controlling law; (2) the availability of new evidence that could not have
been obtained previously through the exercise of due diligence; or (3) the need to correct clear
error or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). A motion to reconsider is not a second opportunity for the losing party to make its
strongest case, to rehash arguments or to dress up arguments that previously failed. See United

States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014).
Analysis
Petitioner argues that the Court misapprehended his claims. Motion And Memorandum
To Alter/Amend Judgment (Doc. #28) at 2. He maintains that his claims should be construed as
follows: “(1) his lawyers were constitutionally deficient for not doing what needed to be done in
regards to [Agent Shawn] Campiti [of the Kansas Bureau of Investigation] and . . . the judge;
(2) neither [Agent Campiti] nor judge can rely on the information in the affidavit to supply
‘probable cause’ (against Mr. Burdick) without recklessly disregarding the truth of what the
information says; and (3) that the judge, on the information available, did not have a substantial
basis for concluding probable cause existed to grant/uphold the warrant.” Id. At this stage,
petitioner cannot assert claims beyond the two claims that he raised in his amended petition, i.e.
(1) trial counsel provided ineffective assistance because he did not request a hearing under Franks
v. Delaware, 438 U.S. 154, 164 (1978) and (2) appellate counsel provided ineffective assistance
because he failed to include the search warrant affidavit in the record on appeal.1 See Amended
Petition (Doc. #6) filed September 20, 2017, at 6, 11. Petitioner is not entitled to relief from
judgment so that he can expand the scope of his claims.
In his motion to alter or amend judgment, petitioner does not assert a change in controlling
law or discovery of new evidence. Liberally construed, petitioner’s motion asserts the need to
prevent manifest injustice because (1) Agent Campiti relied on statements by an informant without

1

Throughout the state proceedings as well, petitioner asserted the same two
ineffective assistance claims. In state court, petitioner also asserted that the evidence was
insufficient to sustain his conviction for child endangerment. Burdick v. State, 383 P.3d 181
(Table), 2016 WL 6138666, at *2 (Kan. Ct. App. 2016), rev. denied, (Kan. June 20, 2017). In the
instant action, however, petitioner did not assert this claim.
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investigating his credibility or attempting to corroborate his statements and (2) Agent Campiti’s
affidavit lacked probable cause. Motion And Memorandum To Alter/Amend Judgment (Doc.
#28) at 2. The Court addressed variations of both arguments in the context of the two specific
ineffective assistance claims which petitioner raised in his petition. Agent Campiti’s alleged
negligence in the investigation is insufficient to warrant a Franks hearing or to establish that
counsel was ineffective because he failed to ask for such a hearing. See Memorandum And Order
(Doc. #26) at 9-12. Next, petitioner’s assertion that the affidavit lacked probable cause does not
establish that the issuing magistrate judge did not have a substantial basis to find probable cause
to issue the warrant or that counsel provided ineffective assistance in failing to include a copy of
Agent Campiti’s affidavit on appeal. See id. at 12-15.
In sum, petitioner has not shown a sufficient basis to alter or amend judgment. He largely
seeks to reargue the same arguments presented in his amended petition. For these reasons and
for substantially the reasons set forth in the Memorandum And Order (Doc. #26), the Court
overrules petitioner’s motion to alter or amend judgment.
IT IS THEREFORE ORDERED that Benjamin Burdick’s Motion And Memorandum
To Alter/Amend Judgment (Fed. R. Civ. P. 59) (Doc. #28) filed February 26, 2019 is
OVERRULED.
Dated this 22nd day of July, 2019 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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