Anaya v. Hatch et al
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DENYING 33 MOTION for Reconsideration. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner Arturo Anaya's Motion to U.S. District Judge on Joint Negligence [Doc. 33 ] is DENIED. IT IS SO ORDERED. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-cv-0331 MV/SMV
TIMOTHY HATCH and ATTORNEY GENERAL
OF THE STATE OF NEW MEXICO,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Petitioner Arturo Anaya’s “Motion to
U.S. District Judge on Joint Negligence,” filed on November 16, 2017. [Doc. 33]. Respondents
filed a response on November 17, 2017. [Doc. 34]. Anaya did not file a reply. Having
considered the briefing, the relevant portions of the record, and the law, the Court finds that the
motion is not well-taken and will be DENIED.
Anaya, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254 on April 22,
2016. [Doc. 1]. In his petition and in a number of additional supporting documents, he raised
several grounds for relief pertaining to his conviction in state court.1 He also filed two motions
for a new trial. [Docs. 23, 25]. In his Proposed Findings and Recommended Disposition
(“PF&RD”), filed on October 6, 2017, the Honorable Stephan M. Vidmar, United States
Magistrate Judge, found that Anaya had asserted a mix of exhausted and unexhausted claims.
A more specific recitation of Anaya’s allegations can be found in the Magistrate Judge’s
Proposed Findings and Recommended Disposition [Doc. 28] and the Order Adopting the
PF&RD [Doc. 30].
[Doc. 28]. Having so found, Judge Vidmar weighed the alternatives for addressing mixed
petitions, as set out by the Tenth Circuit—i.e., (1) dismiss the mixed petition in its entirety;
(2) stay the petition while the petitioner exhausts the unexhausted claims; (3) permit the
petitioner to dismiss the unexhausted claims and proceed with the exhausted claims; or (4) ignore
the exhaustion requirement and deny the petition on the merits, if none of the claims has any
merit. Id. at 8–9 (citing Fairchild v. Workman, 579 F.3d 1134, 1156 (10th Cir. 2009)). He
recommended that Anaya be given the opportunity to withdraw his as-yet unexhausted claims to
allow a decision on the merits as to the exhausted claims.
Id. at 9–10.
recommended that Anaya be given 30 days from entry of an order by the undersigned adopting
the findings and recommendation to file a one-page document indicating whether he wished to
withdraw his unexhausted claims. Id.
Anaya objected to the PF&RD on October 19, 2017. [Doc. 29]. In his objections, he
asserted that the PF&RD failed to address his claim that the “newly discovered evidence” he
disclosed—i.e., the allegedly falsified testimony of two witnesses—should “exonerate [him]
from all conviction.” Id. at 1.
He argued that the PF&RD ignored the law he cited on
intervening cause. Id. He suggested that Judge Vidmar’s finding that his petition contained a
mix of exhausted and unexhausted claims was “irrelevant” in light of the “newly discovered
evidence.” Id. Along with his objections, Anaya submitted a document indicating his election
not to withdraw his unexhausted claims. Id. at 3.
On November 6, 2017, the Honorable Robert A. Junell, Senior United States District
Judge, issued an order overruling the objections, adopting the PF&RD, denying the petition and
both motions for a new trial, and dismissing the case without prejudice. [Doc. 30]. On de novo
review, Judge Junell found that Anaya’s objections to the PF&RD were meritless. Id. at 10–11.
He found that Judge Vidmar had not ignored Anaya’s claims regarding the allegedly falsified
testimony. Id. at 11. Rather, he found that Anaya had not exhausted them in state court, and it
was therefore inappropriate to consider the claims on the merits. Id. Anaya’s allegation that the
claims involved “newly discovered evidence” did not allay the exhaustion requirement. Id.
(citing cases). Judge Junell therefore adopted the finding in the PF&RD that Anaya had alleged
a mix of exhausted and unexhausted claims and the recommendation that he be given the
opportunity to withdraw the unexhausted claims. Id. at 12. He further found that Anaya had
indicated, via a single-page document included with his objections to the PF&RD, his desire not
to withdraw his unexhausted claims. Id. (citing [Doc. 29] at 3). Therefore, because Anaya had
elected not to withdraw his unexhausted claims, his petition was dismissed in its entirety without
prejudice for failure to exhaust.
Judge Junell likewise denied Anaya’s two motions
requesting a new trial. [Docs. 23, 25]. He denied a certificate of appealability [Doc. 31] and
entered final judgment [Doc. 32].
Anaya subsequently filed the instant “Motion to the U.S. District Judge on
Joint Negligence,” which has been docketed as a motion to reconsider. [Doc. 33]. In it, he
describes the theory of “joint negligence.”2 Id. at 1. He asserts that the “joint negligence” theory
provides “more supporting evidence for a new trial [he] requested.” Id. He maintains that the
Describing the “joint negligence” theory, he writes: “In case of several people, proximately
causing accident, they act together in concert [and] either do something together which they
should not do or fail to do something which they are together obligated to do under
circumstances.” [Doc. 33] at 1.
Court said it “would not recommend rulings on [Anaya’s motions for a new trial] at this time.”
Id. In response, Respondents simply ask the Court to deny the motion. [Doc. 34].
Anaya filed the instant motion ten days after final judgment was entered against him.
Therefore, the Court will construe it as a motion for relief from judgment pursuant to Fed. R.
Civ. P. 59(e).3 Rule 59(e) provides that a district court may alter or amend a judgment on a
motion filed within 28 days of entry of the judgment. The court may reconsider a final decision
if 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 court “is vested
The Court recognizes that, in the habeas context, a post-judgment motion may be considered a
“second or successive” habeas petition, rather than a “true” Rule 59(e) or 60(b) motion. The
distinction matters because a petitioner must obtain authorization from the Tenth Circuit Court of
Appeals before a district court may hear his second or successive habeas petition. Spitznas v.
Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (citing 28 U.S.C. § 2244). A Rule 59(e) motion is
a “second or successive petition if it in substance or effect asserts or reasserts a federal basis for
relief from the petitioner’s underlying conviction.” Id. at 1215. Conversely, it is a “true”
Rule 59(e) motion if it “challenge[s] only a procedural ruling of the habeas court which
precluded a merits determination of the habeas application.” Id. at 1215–16. In order for a
habeas petition to be considered second or successive, “the previous motion must have been
denied on the merits. The district court must have engaged in substantive review. Haro-Arteaga
v. United States, 199 F.3d 1195, 1196 (10th Cir. 1999) (per curiam) (internal quotations omitted).
A petitioner is not subject to the statutory restriction on “second or successive” petitions where,
among other things, his previous petition was dismissed without prejudice for failure to exhaust
state remedies. Id. (citing McWilliams v. Colorado, 121 F.3d 575, 575 (10th Cir. 1997)). In the
present case, the Court dismissed Anaya’s petition without prejudice for failure to exhaust. See
[Doc. 33]. The Court did not engage in a substantive review of any of his claims. Therefore, the
present motion is not a “second or successive” § 2254 petition. See Wilson v. Hatch, 15-cv-0989
WJ/LF, [Doc. 45] at 5–6 (D.N.M. June 27, 2017) (finding that petitioner’s post-judgment motion
was a “true” Rule 60(b) motion, and analyzing it on such terms, where petitioner had previously
voluntarily withdrawn his petition, precluding adjudication on the merits).
with considerable discretion” in determining whether to grant or deny such a motion. Brown v.
Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). A Rule 59(e) motion is
not intended to “allow a losing party to rehash arguments previously addressed or to present new
legal theories or facts that could have been raised earlier.” ACE USA v. Union Pac. R.R. Co.,
2011 WL 6097138, at *1 (D. Kan. Dec. 7, 2011) (unpublished). “A party’s failure to present its
strongest case in the first instance does not entitle it to a second chance in the form of a motion to
Granting a motion to alter or amend is an “extraordinary remedy” to be used “sparingly,”
in recognition of the interests in finality and the conservation of judicial resources. Torre v.
Federated Mut. Ins. Co., 906 F. Supp. 616, 619 (D. Colo. 1995); cf. Allender v. Raytheon
Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006) (discussing related standard under
Rule 60(b)); Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248 (10th Cir. 2007) (“Relief under
Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” (internal
In the instant motion, Anaya refers to “joint negligence” and suggests that this principle
provides “more supporting evidence” for the motions for a new trial that he filed, which he
asserts the Court previously said it “would not recommend rulings on.” [Doc. 33] at 1. As an
initial matter, Anaya is mistaken in his apparent belief that the Court has not already disposed of
the motions for a new trial. It is true that, in the PF&RD, Judge Vidmar noted that he would not
recommend rulings on the two motions at that time. [Doc. 28] at 1 n.2. However, Judge Junell
subsequently ruled on the motions in his order adopting the PF&RD. [Doc. 30] at 12 n.6, 13. He
denied the motions, having found that Anaya’s petition warranted dismissal without prejudice for
failure to exhaust. Id.
Moreover, to the extent that Anaya believes his new “supporting evidence” warrants
reconsideration of the order dismissing his petition, he is mistaken.
Anaya appears to be
asserting an argument related to his self-defense claims. But his petition was denied and his case
dismissed without prejudice for failure to exhaust, precluding any merits-based determination of
his claims. Even liberally construed, his motion lacks any sound basis in the controlling facts or
law of the case. Anaya does not show that he is entitled to the “extraordinary remedy” of
post-judgment relief—he does not show a change in law, previously unavailable evidence, or any
other error that would persuade the Court that it erred in denying his petition. His claims and
motions for a new trial were properly denied, and his case was properly dismissed without
prejudice for failure to exhaust.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner
Arturo Anaya’s “Motion to U.S. District Judge on Joint Negligence” [Doc. 33] is DENIED.
IT IS SO ORDERED.
United States District Judge
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