McIntyre v. McKune

• Decision Date: 14 July 2011
• Docket Number: CASE NO. 08-3089-SAC
• Parties: TERRY D. McINTYRE, Petitioner, v. DAVID McKUNE, et al., Respondents.
• Court: U.S. District Court — District of Kansas

TERRY D. McINTYRE, Petitioner,

v.DAVID McKUNE, et al., Respondents.

CASE NO. 08-3089-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: July 14, 2011

ORDER

This habeas corpus petition, 28 U.S.C. § 2254, was denied by Memorandum and Order entered February 18, 2011. The matter is before the court upon petitioner's Motion for Reconsideration (Doc. 18) filed on March 2, 2011; his Supplement to Motion (Doc. 19) filed on March 8, 2011; and his Motion to Compel (Doc. 20) filed on May 16, 2011. Having considered these filings, the court denies the motions.

Mr. McIntyre does not specify the authority under which he brings these motions. The Tenth Circuit Court of Appeals has discussed "self-styled" motions to reconsider:

A "motion for reconsideration, not recognized by the Federal Rules of Civil Procedure, Clough v. Rush, 959 F.2d 182, 186 n. 4 (10th Cir. 1992), may be construed in one of two ways: if filed within (28)¹ days of the district court's entry of judgment, it is treated as a motion to alter or amend the judgment under Rule 59(e); if filed more than (28) days after entry of judgment, it is treated as a motion for relief from judgment under Rule 60(b)."

Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir. 2002).²

Accordingly, the court construes petitioner's Motion for Reconsideration and Supplement to Motion as filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

The Tenth Circuit has also explained that the district court must undertake another analysis when construing a motion to reconsider in the context of federal habeas corpus cases. See Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006)(considering whether a Rule 60(b) motion was actually a second or successive § 22 54 motion); see also United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006)(explaining that "Spitznas involved the interplay between § 2254 and Rule 60(b)" and that "Rule 59(e) motions are subject to the same characterization" as Rule 60(b) motions that should be construed as second or successive habeas petitions). This analysis is necessary because of the statutory bar to "relitigation of claims presented in a prior (habeas) application, § 2244(b)(1)," as well as "litigation of claims not presented in a prior application, § 2244(b)(2)" where such claims were previously available. Calderon v. Thompson, 523 U.S. 538, 553 (1998); see also Winestock, 340 F.3d 200, 204 (4th Cir. 2003); Alley v. Bell, 101 F.Supp.2d 588, 669 (W.D. Tenn. 2000), aff'd, 307 F.3d 380 (6th Cir. 2002)(Where a Rule 59(e) motion reiterates claims previously rejected, it falls within the category of cases proscribed by the successive petition doctrine.). Motions to reconsider cannot be used to circumvent the strict requirements for filing a second or successive § 2254 application. See United States v. Sternberg, 5Fed.Appx. 806, 808 (10th Cir. 2001)(unpublished);³ Lopez v. Douglas, 141 F.3d 974, 975-76 (10th Cir.)(per curiam), cert. denied, 525 U.S. 1024 (1998)(holding that petitioner's Rule 60(b)(6) motion was an implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a second § 2254 petition in the district court). Under this analysis, the Tenth Circuit perceives of "no distinction" between Rule 60(b) motions and Rule 59(e) motions that attempt to raise new or relitigate already determined habeas claims. U.S. v. Bovie, 28 Fed.Appx. 734, 735 (10th Cir. 2001)(unpublished); Ward v. Norris, 577 F.3d 925, 935 (8th Cir. 2009)("Ward's Rule 60(b) and Rule 59 motions were improper because they were not based on a procedural defect, but rather attacked previous habeas counsel's omissions and asked for a second opportunity to have the merits determined favorably.")(citing Gonzales, 545 U.S. at 532 n. 2); United States v. Martin, 132 Fed.Appx. 450, 451 (4th Cir. 2005)(per curiam)(unpublished)(Defendant's "self-styled motion under Rule 59(e) is, in substance, a second motion attacking his conviction and sentence under 28 U.S.C. § 2255."); see generally Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007)(describing Pedraza as "holding post-judgment effort to raise new claim by motion under Rule 59(e) is likewise equivalent of second or successive petition under § 2244(b).); but cf. , Curry v. U.S., 307 F.3d 664, 665-66 (7th Cir. 2002)(and cases cited therein)(The court assumes that because a Rule 59(e) motion is not an effort to set aside a judgment that has become final, it is not subject to the second and successive statutory limitations of 28 U.S.C. § 2244 that apply to Rule 60(b)motions.). The court must therefore distinguish between Rule 59(e) motions and second or successive habeas petitions that "merely masquerade" as Rule 59(e) motions. See Clemmons v. Davies, 198 Fed.Appx. 763 (10th Cir. 2006)(unpublished)(citing Spitznas, 464 F.3d at 1213).

A Rule 59(e) motion is a second or successive application "if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction." With respect to petitioner's allegations that are second and successive, this court simply has no jurisdiction to hear them unless the applicant has first sought and obtained authorization from the Tenth Circuit Court of Appeals to file a second successive petition. The court may determine whether or not to exercise its discretion to transfer such allegations to the Tenth Circuit for authorization of a second or successive petition or dismiss them for lack of jurisdiction. See In re: Cline, 531 F.3d 1249 (10th Cir. 2008).

A motion to reconsider is a "true" Rule 59(e) motion "if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition." See Spitzas, 464 F.3d at 1216 (citing Gonzalez v. Crosby, 545 U.S. 524 (2005)). The court must rule on a true motion as it would any other Rule 59(e) motion. And, if the post-judgment motion is "mixed", that is a motion that contains both true Rule 59(e) allegations and second or successive habeas claims, the district court must (1) address the merits of the true Rule 59(e)allegations, and (2) treat the other claims as second or successive. Spitznas, 464 F.3d at 1217.

Here, the court is faced with a "mixed" motion. Upon careful consideration of petitioner's motions together with relevant portions of the case file, the Court concludes that Mr. McIntyre fails to demonstrate that this court should alter or amend the order and judgment entered herein.

DISCUSSION

A. Reconsideration concerning original claims

In his motions, petitioner improperly purports to simply "incorporate" his entire Traverse and "habeas Corpus statement of facts," which amount to 90 pages that were already thoroughly addressed by this court. If this court is being asked to reconsider all the claims and arguments in these prior pleadings, this part of the motion is clearly a second and successive application for habeas corpus relief. In any event, this blanket incorporation of petitioner's prior pleadings is also not a sufficient statement of any grounds that might entitle petitioner to relief from judgment under Rule 59(e).

Petitioner specifically refers to his claims of ineffective assistance of trial counsel. His allegations immediately following this initial reference make little sense. His statements that the district court erred in "denying defendant his right to issue a subpoena duces tecum and to examine the medical records of the agent" and erred "in imposing restrictions on discovery information about the agent under 22-3212," appear to summarize the holding of a cited Kansas case only. Mr. McIntyre does not allege sufficientrelevant facts from his own case. In any event, he was already advised that claims based on state law are not grounds for federal habeas corpus relief.

Petitioner repeats his conclusory, self-serving statements that "the DNA agent was the sole evidence to connect defendant with the alleged crimes" and that the credibility of the absent agent was a material issue.⁴ These allegations are habeas corpus claims, and as such are second and successive subject to the preauthorization requirement.

Petitioner alleges that he has a "statutory right to competent counsel on post-conviction appeal" and it is not the province of a federal habeas court to re-examine a state court determination of state law. This is another habeas claim that is second and successive,⁵ as well as without merit.

Petitioner cites case law "where the state courts plainly misapprehend or misstate the record in making findings . . ." He then alleges that the state court fact-finding process is undermined where the state court ignores evidence before it. Finally, he states that the undersigned judge "adopted the same process as the state fact-finding." Petitioner's allegations regarding the state court's fact finding are either predetermined or new habeas corpus claims that are subject to the threshold preauthorizationrequirement.⁶

In his Supplemental Motion, petitioner argues that it was "manifestly unfair for the district court to deny entire 1507 based on DNA results." Again, this is a repetitive habeas corpus claim, that was already considered and rejected by this court.⁷

Petitioner makes no showing that he sought and obtained preauthorization from the Circuit Court of Appeals to file a second and successive application in this court.⁸ As a consequence, this court lacks jurisdiction to hear either his new or previously adjudicated habeas claims. The court further finds that it would not be in the interest of justice for this court to transfer this motion to the Tenth Circuit for consideration of preauthorization.

The court believes that it could simply deny these portions of petitioner...