Zamarron v. Smith et al

Filing 8

MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack Denying 7 MOTION for Reconsideration re 5 Memorandum Opinion and Order, 6 Judgment. Certificate of Appealability is Denied (jjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CAYETANO ZAMARRON,
Petitioner,
vs.

No. CV 17-00963 RB/SMV

RAYMOND SMITH, WARDEN, LCCF, and
ATTORNEY GENERAL OF THE STATE OF
NEW MEXICO,
Respondents.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO RECONSIDER
THIS MATTER is before the Court on the Motion to Reconsider filed by Petitioner
Cayetano Zamarron on March 5, 2018. (Doc. 7.) The Court will deny the Motion to Reconsider.
Mr. Zammaron (Petitioner) filed his Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody on September 21, 2017. (Doc. 1 (“Petition”).) The
Court dismissed the Petition for lack of jurisdiction and entered Judgment on January 30, 2018.
(Docs. 5; 6.) The Court dismissed the Petition under 28 U.S.C. § 2244(b) because it was a second
or successive § 2254 petition filed without the required authorization from the United States
Court of Appeals for the Tenth Circuit. (See Doc. 5.) The Court also denied a Certificate of
Appealability. (Id. at 4.)
Petitioner filed his Motion to Reconsider on March 5, 2018. (Doc. 7.) He asks the Court
to reconsider its dismissal of the case and appoint counsel to represent him or to certify the
dismissal for appeal. (Id. at 1–3.) Petitioner raises two issues in his motion, a “time issue” and
the issue of appointment of counsel. (Id. at 1.) As to the time issue, he states:
In case of time issue Mr. Zamarron only received courts order 7 days prior to 215-18. The institution is/was on ‘lock down’ and Zamarron had no canteen access,
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for paper etc., no law library access for research, and no assistance. This
ammounts to a ‘state created impediment’.
(Id.) With respect to the appointment of counsel issue, he argues:
Court should have appointed counsel to aid Mr. Zamarron . . . in each of his
habeas petitions including this one. Lack of shows an injustice from the start for a
man with no education, a Mexican nationalist, with limited grasp of English.
There are no telling how many issues Mr. Zamarron actually has, including
‘actual innocence’ that he could raise w/ assistance, or even law library access.
(Id. at 1–2.) Petitioner’s motion does not address the second or successive nature of his Petition
or his failure to seek Tenth Circuit authorization prior to filing as required by law.
The Federal Rules of Civil Procedure do not expressly contemplate motions for
reconsideration. Instead, motions for reconsideration are construed as proceeding under either
Fed. R. Civ. P. 59(e) or 60(b). A motion to alter or amend a judgment under Rule 59(e) must be
brought within 28 days after entry of the judgment. Fed. R. Civ. P. 59(e). Grounds warranting a
motion to reconsider 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. See Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995).
A motion for reconsideration is proper where the court has clearly misapprehended the facts, a
party’s position, or the controlling law, but is not appropriate to revisit issues already addressed
in prior filings. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Servants
of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
A motion for relief from a judgment under Rule 60(b) must be brought within a
reasonable time and, for many of the Rule 60(b) grounds, within one year after entry of the
Judgment. Fed. R. Civ. P. 60(c). Rule 60(b) grounds for relief from a judgment include: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud;

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(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any
other reason that justifies relief. Fed. R. Civ. P. 60(b)(1)–(6).
If the Court construes the motion as one pursuant to Rule 59(e), it was filed more than 28
days after entry of the Judgment and is untimely. The Court’s Judgment was entered on January
30, 2018, and the deadline for filing a Rule 59(e) motion was February 27, 2018. Petitioner
contends that he did not receive the Court’s Judgment until “7 days prior to 2-15-18.” (Doc. 7 at
1.) His motion demonstrates that he received the Judgment well within the Rule 59(e) time
period, but did not file a timely motion or seek an extension of time to file.
Further, even if he had timely filed under Rule 59(e), his motion establishes no basis for
reconsideration of the Court’s dismissal. Petitioner’s motion does not present any claim or
argument based on an intervening change in the controlling law or newly discovered evidence.
Nor does he argue any error on the part of the Court in its jurisdictional dismissal of the case.
Brumark Corp., 57 F.3d at 948. To the extent he is asking for reconsideration to prevent
manifest injustice, his argument that the Court should have appointed counsel for him similarly
fails to establish any basis for reconsideration. First, Petitioner did not file any request for
appointment of counsel in this case. Further, he does not have a right to appointment of counsel
in a civil proceeding, including a habeas corpus proceeding. Beaudry v. Corrs. Corp. of Am., 331
F.3d 1164, 1169 (10th Cir. 2003); MacCuish v. United States, 844 F.2d 733, 735 (10th Cir.
1988). Last, Petitioner’s argument that appointed counsel could raise numerous issues, including
actual innocence, goes to the merits of his habeas corpus claims, not to the Court’s dismissal of
the Petition as an unauthorized second or successive filing. Fed. R. Civ. P. § 2244(b).
Petitioner also fails to establish any grounds for relief from the Judgment under Fed. R.
Civ. P. 60(b). He does not raise any of the grounds specified in 60(b)(1) through 60(b)(5). The

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only possible basis for relief would be under Rule 60(b)(6). Rule 60(b)(6) does not particularize
the factors that justify relief, but it provides courts with authority to vacate judgments whenever
such action is appropriate to accomplish justice. Van Skiver v. United States, 952 F.2d 1241,
1244 (10th Cir. 1991). Ordinarily, the situation must be one beyond the control of the party
requesting relief under Rule 60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S.
193, 202 (1950). Further, Rule 60(b)(6) is to only be applied in extraordinary circumstances.
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). Petitioner’s timeliness
and appointment of counsel arguments do not address the jurisdictional basis for dismissal of the
case and do not constitute the type of extraordinary circumstances warranting Rule 60(b)(6)
relief. Van Skiver, 952 F.2d at 1244.
Petitioner filed his second or successive §2254 Petition without authorization from the
Tenth Circuit Court of Appeals. 28 U.S.C. § 2241(b)(3). Petitioner fails to establish any grounds
for relief from the Court’s Judgment of dismissal under either Fed. R. Civ. P. 59(e) or 60(b)(6).
The Court will deny his Motion to Reconsider and, under Rule 11 of the Rules Governing
Section 2254 Cases, will also deny a certificate of appealability.
IT IS ORDERED that the Motion to Reconsider filed by Petitioner Cayetano Zamarron
on March 5, 2018. (Doc. 7) is DENIED and a Certificate of Appealability is DENIED.

________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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