Burnett v. Allbaugh

Filing 18

OPINION AND ORDER by Judge Ronald A. White : Denying 14 petitioner's Motion to alter or amend the judgment. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STEPHEN CRAIG BURNETT,
Petitioner,
v.
JOE M. ALLBAUGH, DOC Director,
Respondent.

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Case No. CIV 17-462-RAW-KEW

OPINION AND ORDER
On September 27, 2018, Petitioner’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 was denied as barred by the statute of limitations. (Dkt. 12, 13). He also
was denied a certificate of appealability. (Dkt. 12). On October 11, 2018, Petitioner filed
a motion for reconsideration of the Court’s decision, pointing out various alleged errors and
omissions in the Court’s Opinion and Order. (Dkt. 14). The Court construes Petitioner’s
motion as a motion pursuant to Fed. R. Civ. P. 59(e).
A Rule 59(e) motion may be granted “to correct manifest errors of law or to present
newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)
(internal quotation marks omitted). Relief under Rule 59(e) also is appropriate when “the
court has misapprehended the facts, a party’s position, or the controlling law.” Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A Rule 59(e) motion, however,
is not a new opportunity to revisit issues already addressed or to advance arguments that
could have been raised earlier. Id.
Petitioner entered a guilty plea to the charge of First Degree Murder in Tulsa County
District Court Case No. CF-1993-1331, and he was sentenced to life with the possibility of
parole. He claims the State breached the plea agreement by changing parole policies after
the plea was entered, thereby making his change of parole virtually non-existent.

He argues the Court failed to consider the following:
(1) The Court stated his next scheduled parole consideration is set for December 1,
2019, however, parole consideration does not mean he has an actual chance of being paroled.
(2) The Court stated that when Petitioner was considered for parole in another case
in July 1994 and September 1995, the victim’s brother and father both protested the granting
of parole. Petitioner asserts there is no evidence he had any knowledge of the 1994 and 1995
protests, and he was not actually aware of the protests. He, however, fails to explain when
he became aware of the fact that family members could protest, and he has not shown that
this policy actually affected him after 1995. He also does not acknowledge the Court’s
finding that he was aware of the factual predicate of his claim by December 2013 .
Petitioner acknowledges he was aware in 1994 and 1995 that the district attorney
could provide some input at parole considerations, and his prison work record and
accomplishments could be considered by the Pardon and Parole Board. The district
attorney’s role, however, has been greatly expanded since the plea agreement, and the parole
changes only allow consideration of his crime.
(3) The Court stated that in Petitioner’s 2013 parole consideration, the Parole
Investigator recommended that he be paroled, however, in 2016 the Parole Investigator did
not recommend parole because of the heinous nature of Petitioner’s crime. The Court failed
to note that the same Parole Investigator made the conflicting recommendations.
(4) The Court found that although Petitioner presented his claim as a breach of the
plea agreement, he actually was complaining of his repeatedly being denied parole. Petitioner
argues the Court mischaracterized his claim as an excuse to deny the petition.
(5) The Court’s statement that he was sentenced to life imprisonment was not the
whole truth, because he was sentenced to life with the possibility of parole. He complains

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the changes in parole guidelines since his plea have resulted in his having no realistic chance
of parole.
(6) The Court’s citation to Henderson v. Scott, 260 F.3d 1213, 1216-17 (10th Cir.
2001), is not dispositive of his ex post facto claim and is distinguishable. Petitioner does not
allege how the Henderson case is distinguishable.
“[A] motion will be considered under Rule 59(e), when it involves reconsideration of
matters properly encompassed in a decision on the merits.” Phelps v. Hamilton, 122 F.3d
1309, 1323-24 (10th Cir. 1997) (citations and internal quotations omitted). “A Rule 59(e)
motion to alter or amend the judgment should be granted only to correct manifest errors of
law or to present newly discovered evidence.” Id. at 1324 (internal quotations omitted).
“Rule 59(e) relief is appropriate only where ‘the court has misapprehended the facts, a
party’s position, or the controlling law.’” Barber ex rel. Barber v. Colo. Dep’t of Revenue,
562 F.3d 1222, 1228 (10th Cir. 2009) (quoting Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000)).
This action was denied as time barred under 28 U.S.C. § 2244(d)(1)(A), and Petitioner
has not shown that decision was erroneous. Furthermore, regardless of the time bar, and as
set forth in the Court’s prior Opinion and Order, Petitioner’s claim fails on the merits. The
Court, therefore, finds Petitioner’s claims of error fail to meet the burden for relief under
Rule 59(e). His motion to alter or amend the judgment must be denied.
ACCORDINGLY, Petitioner’s motion to alter or amend the judgment (Dkt. 14) is
DENIED.
IT IS SO ORDERED this 30th day of September 2019.

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