Parker v. Martin et al

Filing 63

ORDER denying 61 Motion for Reconsideration filed by Alvin Parker. Signed by Chief Judge Timothy D. DeGiusti on 7/28/2022. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALVIN PARKER,
Petitioner,
v.
TERRY MARTIN, Warden,
Respondent.

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Case No. CIV-13-1365-D

ORDER
Before the Court is Petitioner’s pro se Motion for Reconsideration [Doc. No. 61],
filed pursuant to Fed. R. Civ. P. 59(e). Petitioner seeks relief from the Order of July 12,
2022 [Doc. No. 60], denying his motion to be released on bail during his appeal from the
Order of May 9, 2022 [Doc. No. 51]. Petitioner contends the Court overlooked that his
appeal challenges a determination that his Rule 60(b) motion was an unauthorized second
or successive § 2254 petition and, because the Court effectively denied him habeas corpus
relief, a motion for release from custody under Fed. R. App. P. 23(b)(3) is proper. 1
As Petitioner well knows, because he routinely files a Rule 59(e) motion after each
adverse order, the grounds for relief 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 Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). A Rule 59(e) motion “is appropriate where the court has
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As a pro se litigant, Petitioner is entitled to liberal construction of his Motion. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

misapprehended the facts, a party’s position, or the controlling law. It is not appropriate
to revisit issues already addressed or advance arguments that could have been raised in
prior briefing.” Id. (citations omitted).
Upon consideration, the Court finds no basis for relief from the Order denying
Petitioner’s request for release from custody during his appeal. To obtain release pending
appeal, a petitioner must show a substantial likelihood he will prevail on appeal or the
existence of exceptional circumstances. See United States v. Akers, 851 F. App’x 135,
136 (10th Cir. 2021) (unpublished) (quoting United States v. Mett, 41 F.3d 1281, 1282 (9th
Cir. 1994)); see also Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981) (release pending
habeas decision). Petitioner has made no such showing.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Reconsideration
[Doc. No. 61] is DENIED.
IT IS SO ORDERED this 28th day of July, 2022.

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