Immekus v. Cassady

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the pro se motion of petitioner for a certificateof appealability (ECF No. 16 ) is denied.However, because his appeal appears to be taken in good faith,IT IS FURTHER ORDERED that the motion of petition er for leave to continueto proceed in forma pauperis (ECF No. 17 ) is sustained. Fed. R. App. P. 24 (a) (3). As petitioner does not appear to have any pending state cases, IT IS FURTHER ORDERED that his motion to stay and to order respondent to show cause (ECF No. 18) is denied as moot. The Clerk of this Court is directed to transmit a copy of this order to the United States Court of Appeals for the Eighth Circuit. Signed by Magistrate Judge David D. Noce on 1/11/17. (JAB) (cc:USCA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARK EDWARD IMMEKUS,
Petitioner,
v.
JAY CASSADY,
Respondent.

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No. 4:14 CV 404 DDN

MEMORANDUM AND ORDER
By order entered November 28, 2016, the court dismissed petitioner’s motion for a
writ of habeas corpus under 28 U.S.C. § 2254 and denied a certificate of appealability.
(ECF Nos. 13 and 14). Petitioner now seeks a certificate of appealability (ECF No. 16),
leave to file an appeal in forma pauperis (ECF No. 17), and an order staying the action
and an order for respondent to show cause (ECF No. 18).
This action has been fully litigated on its merits, and this court has issued a
judgment explicitly finding that petitioner did not make a substantial showing of the
deprivation of a constitutional right. (ECF Nos. 13 and 14). A certificate of appealability
should issue only if the applicant has “made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which the Supreme Court has interpreted to
mean that the “petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.”

Miller-El v.

Cockrell, 537 U.S. 322, 337 (2003).
Petitioner’s motion for a certificate of appealability will be treated as a motion for
reconsideration of the court’s earlier order denying habeas corpus relief and a certificate
of appealability.

“Motions for reconsideration serve a limited function: to correct

manifest errors of law or fact or to present newly discovered evidence.” Hagerman v.

Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988). The motion “cannot be used to
introduce new evidence, tender new legal theories, or raise arguments which could have
been offered or raised prior to entry of judgment.” Innovative Home Health Care v. P.T.O.T. Associates, 141 F.3d 1284, 1286 (8th Cir.1998) (citations omitted). “A district court
has broad discretion in determining whether to grant a motion to alter or amend
judgment.” Hagerman, 839 F.2d at 413. A motion to alter or amend the judgment must
be filed no later than 28 days after judgment has been entered. Fed. R. Civ. P. 59(e).
Petitioner’s motion was not timely filed, though the prison mailbox rule might
apply to this motion. See Grady v. United States, 269 F.3d 913, 916 (8th Cir. 2001); Fed.
R. App. P. 4(c). Even if it were timely, petitioner argues in his motion that he was
wrongfully charged with the general crime of assault rather than the specific crime of
domestic violence, which he alleges would affect the enhancements applicable to his
sentence under Missouri law. (ECF No. 16) (citing State v. Dowdy, 774 S.W.2d 504, 510
(Mo. Ct. App. 1989); Mo. Rev. Stat. §§ 565.050, 565.060, 565.072, 565.073). These
arguments were not raised in his petition, and a motion to reconsider is not an opportunity
to reargue the case and may not be used to argue a new legal theory. Petitioner’s
arguments are not the product of new evidence, nor do they appear to reveal manifest
errors of law or fact.
After careful review of the record and petitioner’s motion for a certificate of
appealability, the undersigned does not believe that reasonable jurists would find the
court’s assessment of the grounds presented in this case debatable or wrong. See id.
Therefore,
IT IS HEREBY ORDERED that the pro se motion of petitioner for a certificate
of appealability (ECF No. 16) is denied.
However, because his appeal appears to be taken in good faith,
IT IS FURTHER ORDERED that the motion of petitioner for leave to continue
to proceed in forma pauperis (ECF No. 17) is sustained. Fed. R. App. P. 24(a) (3).
As petitioner does not appear to have any pending state cases,
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IT IS FURTHER ORDERED that his motion to stay and to order respondent to
show cause (ECF No. 18) is denied as moot.
The Clerk of this Court is directed to transmit a copy of this order to the United
States Court of Appeals for the Eighth Circuit.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on January 11, 2017.

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