Jones v. State of Nebraska

Filing 21

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Jones's Objection (Filing No. 18 ) is overruled. Jones is granted leave to proceed in forma pauperis on appeal. The court will not issue a certificate of appealability in this case. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD J. JONES,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.

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8:15CV94

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Ronald Jones’s Objection (Filing
No. 18) and Notice of Appeal (Filing No. 19). The court liberally construes the
objection as a motion filed pursuant to Rule 59(e) and Rule 60 of the Federal Rules
of Civil Procedure. The court will deny the motion and grant Jones leave to proceed
in forma pauperis on appeal.
POST-JUDGMENT MOTION
The court dismissed Jones’s Petition for Writ of Habeas Corpus on October 14,
2015. The court determined the petition was untimely under 28 U.S.C.
§ 2244(d)(1)(A), and that Jones was not entitled to equitable tolling of the limitations
period. In addition, the court determined Jones made no showing of actual innocence.
(Filing No. 16.) Jones now seeks relief from the court’s judgment under Rules 59(e)
and 60.
Rule 59(e) permits a motion to alter or amend judgment if filed no later than
28 days after the entry of judgment. Fed. R. Civ. P. 59(e). Under Federal Rule of
Civil Procedure 60(b)(6), “the court may relieve a party or its legal representative
from a final judgment [or] order,” for any “reason that justifies relief.” Fed. R. Civ.
P. 60(b)(6). “Motions for reconsideration serve a limited function: to correct manifest
errors of law or fact or to present newly discovered evidence. . . . [A] motion for

reconsideration [may not] serve as the occasion to tender new legal theories for the
first time.” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)
(citing Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)).
As explained in the court’s order dismissing this case, Jones filed his habeas
corpus petition in this court more than five years after his conviction became final,
well after the expiration of the one-year limitations period. See 28 U.S.C.
§ 2244(d)(1)(A) (establishing a one-year limitations period for state prisoners to file
for federal habeas relief that runs from the date on which the judgment became final
by conclusion of direct review or the expiration of the time for seeking such review).
He did not establish that he was pursuing his rights diligently or that some
extraordinary circumstance stood in the way of his filing a habeas corpus petition on
time. For the reasons already provided by this court, Jones’s petition for writ of
habeas corpus is untimely under 28 U.S.C. § 2244(d)(1)(A), and he did not establish
that he is entitled to equitable tolling of the limitations period.
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
Jones filed a Notice of Appeal (Filing No. 19) on December 29, 2015. He
appeals from a judgment dated October 14, 2015. Jones’s Notice of Appeal is timely
because he filed the post-judgment motion discussed above on October 27, 2015. See
Fed. R. Civ. App. 4(a)(4).
The court has reviewed Jones’s prisoner account statement (Filing No. 4) and
finds he is entitled to proceed in forma pauperis on appeal.
MOTION FOR CERTIFICATE OF APPEALABILITY
Jones asked this court to enter a certificate of appealability. (Filing No. 18 at
CM/ECF pp. 6-7.) The court previously determined it would not issue a certificate
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of appeability in this case, and it finds no reason to reconsider this decision.
Therefore, the court will not issue a certificate of appealability for the reasons
provided in the court’s Memorandum and Order dated October 14, 2015 (Filing No.
16).
IT IS THEREFORE ORDERED that:
1.

Jones’s Objection (Filing No. 18) is overruled.

2.

Jones is granted leave to proceed in forma pauperis on appeal.

3.

The court will not issue a certificate of appealability in this case.

DATED this 1st day of February, 2016.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

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