Summary
construing post-judgment Rule 59(e) motion as a second § 2255 petitioner under AEDPA
Summary of this case from Stewart v. U.S.Opinion
Case No. 003366-SAC 97-40005-03-SAC
May 3, 2001
MEMORANDUM AND ORDER
This case is before the court on defendant's pro se motion to alter or amend the judgment pursuant to Rule 59(e) (Dk. 266). By this motion, defendant seeks to alter the court's order denying defendant's § 2255 motion (Dk. 263). Defendant wishes to assert for the first time an ineffective assistance of counsel argument, challenging among other matters the jury's use of an alleged general verdict rather than a special verdict.
Defendant's motion to alter or amend was properly filed within ten days of the entry of judgment in this case. See Fed.R.Civ.P. 59(e). Motions to alter or amend give the court an opportunity to correct manifest errors of law or fact, to hear newly discovered evidence or to consider a change in the law. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992); Renfro v. City of Emporia, Kan., 732 F. Supp. 1116, 1117 (D.Kan. 1990), aff'd, 948 F.2d 1529 (10th Cir.), cert. dismissed, 503 U.S. 915 (1992). A motion to alter or amend does not permit a losing party to present facts that could have been raised earlier. ( Id., citing Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1332 (10th Cir. 1996). Defendant has not alleged in this motion manifest errors of law or fact, newly discovered evidence or a change in the law. Thus nothing in his Rule 59 motion requires this court to reconsider its previous order.
"The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The Tenth Circuit has held that a Rule 60(b)(6) motion cannot be used to circumvent restrictions imposed on successive § 2255 motions. See Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.) (per curiam), cert. denied, 525 U.S. 1024 (1998). Although the Tenth Circuit has not had an opportunity to address the issue, this court believes that it would reach the same result as to Rule 59 motions. See Bisaccia v. United States, 2000 WL 1677747 (E.D.N.Y. Sept. 18, 2000) ("Rule 59 is no more available than Rule 60 as a vehicle for circumventing the statutory bar to successive § 2255 petitions . . . the question whether a post-conviction challenge is a "second or successive" § 2255 petition is subject to objective evaluation, and is not determined by how the filing is labeled."); Alley v. Bell, 101 F. Supp.2d 588, 668 (W.D.Tenn. 2000) (Under § 2244(b)(3), if defendant's motion to alter or amend is the functional equivalent of a successive petition it cannot be brought under Rules 59(e) or 60 of the Federal Rules of Civil Procedure without permission from the Court of Appeals.) To permit the defendant to proceed on the merits of his claims by restyling his request as a motion to alter and amend the court's decision on his initial collateral attack and proceeding as if the AEDPA did not exist, would render § 2255 ineffectual.
Accordingly, the court will treat the defendant's post-judgment Rule 59(e) motion as a second motion under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See id; United States v. Washington, 2001 WL 170481 (10th Cir. Feb. 21, 2001). Under the new "gatekeeping" requirements imposed by AEDPA, a second or successive claim for relief under § 2255 cannot be heard in the district court until it is certified by the court of appeals to depend on newly discovered evidence which would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense, or on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. 28 U.S.C. § 2255. Defendant has not fulfilled the prerequisites of this statute.
"The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice `abuse of the writ.'" Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997).
Abuse of the writ required dismissal of a petition which "(1) `successively' repeats claims previously decided on the merits, or (2) `abusively' asserts new ground unjustifiably omitted from a prior petition." Watkins v. Champion, 39 F.3d 273, 275 (10th Cir. 1994). The abuse of the writ doctrine is rooted in the need for finality and concerns of comity, McCleskey v. Zant, 499 U.S. 467, 491-92, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991). In Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Supreme Court upheld the constitutionality of the "gatekeeping" function of the courts of appeals, concluding that this function is within the mainstream of the evolving jurisprudence to curb abuse of the writ. Id.
Defendant's Rule 59(e) motion does reiterate some claims rejected in the Court's initial § 2255 order, such as defendant's claims that the jury did not decide that the controlled substance at issue was crack cocaine, and that his conviction and sentence are invalid under the principles recently enunciated by the Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). This character places it within the category of cases formerly proscribed by the "successive petition" doctrine. See generally Sanders v. United States, 373 U.S. 1, 15 (1963). In other part, defendant asserts new ground omitted without excuse from his prior § 2255 petition, such as defendant's general claim of ineffective assistance of counsel. Accordingly, for procedural reasons alone, defendant's motion must be denied.
Reaching the merits of defendant's uncertified second § 2255 petition would impermissibly circumvent the AEDPA's gatekeeping restrictions. Because defendant failed to obtain prior authorization from the Tenth Circuit, this court lacks jurisdiction to decide his motion. When a defendant files a successive § 2255 motion without first seeking the required authorization, this court must transfer the motion to the appellate court in the interest of justice pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). Accordingly, defendant's motion to alter or amend under Rule 59 is transferred to the Tenth Circuit for its decision on certification as a second § 2255 petition.
IT IS THEREFORE ORDERED that defendant's motion to alter or amend (Dk. 266) pursuant to Fed.R.Civ.P. 59(e) is treated as his second motion for relief pursuant to 28 U.S.C. § 2255 and is transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631.
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motion (Dk. 266 267), along with a copy of this Memorandum and Order, to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk shall also send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.