Pena v. Stephens

Filing 101

OPINION AND ORDER DENYING MOTIONS FOR RULE 59(e) AND 60(b) RELIEF denying 97 Motion to Alter Judgment; denying 98 Motion for Relief from Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALLEN PENA; aka PENA,
Petitioners,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:14-CV-334
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OPINION AND ORDER DENYING MOTIONS
FOR RULE 59(e) AND 60(b) RELIEF
Final judgment dismissing Petitioner’s application for § 2254 relief and denying
Petitioner a Certificate of Appealability was entered June 17, 2015 (D.E. 86, 87).
Petitioner filed a Notice of Appeal June 29, 2015 (D.E. 88). On July 13, 2015, Petitioner
filed motions to alter or amend the judgment and for relief from judgment (D.E. 97, 98).
A motion which challenges a prior judgment on the merits is treated either as a
motion to alter or amend the judgment under Rule 59 or a motion for relief from
judgment under Rule 60(b). Ford v. Elsbury, 32 F.3d 931, 937 n. 7 (5th Cir. 1994). If the
motion is filed within twenty-eight (28) days1 of entry of judgment, the motion falls
under Rule 59. Id. If it is filed after that, it falls under Rule 60(b). Id. In this case, final
judgment was entered on June 17, 2015 (D.E. 87), and Petitioner’s motions were filed on
July 13, 2015 (D.E. 97, 98), within twenty-eight (28) days of entry of final judgment, and
thus both are considered properly under Rule 59(e).
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Effective December 1, 2009, FED. R. CIV. P. 59(e) was amended, increasing the time limit for
filing a motion to alter or amend the judgment from ten (10) to twenty-eight (28) days.

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“A Rule 59(e) motion is a motion that calls into question the correctness of a
judgment. Rule 59(e) is properly invoked ‘to correct manifest errors of law or fact or to
present newly discovered evidence.’” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th
Cir. 2002) (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
Petitioner has failed to cite to any manifest errors of law or fact, and has presented
no new evidence.

He simply repeats the arguments made in his earlier pleadings.

Petitioner's motion to alter or amend the judgment (D.E. 97), as well as his motion for
relief from judgment (D.E. 98) are denied.

ORDERED this 5th day of August, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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