Fierro v. Smith et al

Filing 20

ORDER by Magistrate Judge Karen B. Molzen denying 17 Motion for Reconsideration. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ERIC FIERRO,
Petitioner,
v.

No. 2:17-cv-00738 JCH-KBM

R.C. SMITH, Warden,
ATTORNEY GENERAL FOR
THE STATE OF NEW MEXICO,
Respondents.

ORDER DENYING MOTION TO RECONSIDER
Before the Court is Petitioner Eric Fierro’s Motion for Reconsideration. (Doc. 17).
Petitioner asks the Court to reconsider its Memorandum Opinion and Order denying his motion to
appoint counsel in connection with his 28 U.S.C. § 2254 habeas corpus proceeding. (Doc. 16).
As grounds, Petitioner argues he is dyslexic and has obsessive compulsive disorder (“OCD”) and
attention deficit hyperactivity disorder (“ADHD”).
The denial of a motion to appoint counsel in a non-criminal case is interlocutory. See Hill
v. Corrections Corp. of America, Inc., 189 Fed. App’x 693, 697 n. 3 (10th Cir. 2006) (citing Cotner
v. Mason, 657 F.2d 1390, 1391-92 (10th Cir. 1981)). Reconsideration of interlocutory orders is
governed by Fed. R. Civ. P. 54(b), which provides that such orders “may be revised at any time” at
the Court’s discretion. See Ankeney v. Zavaras, 524 Fed. Appx. 454, 458 (10th Cir. 2013). “For
guidance, the [C]ourt may look to the standard used to review a motion made pursuant to [Fed. R.
Civ. P.] 59(e).” Id. Grounds for reconsideration under Rule 59(e) include: “(1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (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).
After carefully considering the Motion, the Court concludes reconsideration is not
warranted under Rules 54 or 59. Petitioner appears to argue he is unable to present his habeas
claims due to his dyslexia, OCD, and ADHD, which is one factor to consider when appointing
counsel. See Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). Notwithstanding these
limitations, however, Petitioner prepared a detailed habeas petition that survived initial review and
submitted various other cogent filings containing legal and factual support for his positions. The
Court is therefore still not convinced that counsel should be appointed.
IT IS ORDERED that the Motion for Reconsideration (Doc. 17) is DENIED.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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