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McAfee v. Zupan

United States District Court, D. Colorado

March 18, 2015

MR. ANTHONY E. McAFEE, SR., Applicant,
v.
MR. DAVID ZUPAN, Warden of Territorial Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER

LEWIS T. BABCOCK, Senior District Judge.

At issue is the pro se "Motion to Alter or Amend Judgment Pursuant to Fed.R.Civ.P. 59(e)" (ECF No. 9) that Applicant filed on March 16, 2015. In the Motion, Mr. McAfee asks the Court "to reconsider its ruling, denying his motion for an extension of time to file a motion for authorization to file a second or successive habeas corpur [sic], and grant him (30) thirty days to file it in the interest of justice, and to prevent any further miscarriage of justice."

The Court must construe the Motion liberally because Mr. McAfee is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons discussed below, the Motion is denied.

I. Procedural Background

Mr. McAfee initiated this action on January 6, 2015 by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his conviction in case 99CR4486 in the Denver County District Court. On January 14, 2015, the Court dismissed the action for lack of jurisdiction because Mr. McAfee conceded that he previously sought habeas corpus relief in this Court pursuant to § 2254 challenging the validity of the same state court conviction. ( See ECF No. 5). Thus, the Court found that the instant application was a second or successive application subject to the restrictions on filing a second or successive application in § 2244(b). The Court further advised Mr. McAfee that he must apply to the Tenth Circuit for an order authorizing this Court to consider a second or successive habeas corpus application.

Rather than file a motion for authorization to file a second or successive habeas corpus pursuant to 28 U.S.C. § 2244(b), Mr. McAfee filed a "Motion for an Extention [sic] of Time to File a Motion for Authorization to File a Second or Successive Habeas Corpus" in the United States Courts of Appeals for the Tenth Circuit on February 12, 2015. ( See ECF No. 9-1 at 1). In response to the motion, the Office of the Clerk for the Tenth Circuit sent Mr. McAfee a letter stating that if he was "seeking an extension of time in which to appeal the district court's order" he must file that motion in the district court pursuant to Fed. R. App. P. 4(a)(5). ( Id. at 3). The letter further advised Mr. McAfee that "the 30-day time to which you seem to refer is the time in which [the Tenth Circuit] must rule on a motion for authorization to file a second or successive habeas petition." ( Id. ).

On February 23, 2015, Mr. McAfee filed a "Motion for an Extention [sic] of Time to File a Motion for Authorization to File a Second or Successive Habeas Corpus" (ECF No. 7) in this Court. On March 4, 2015, the Court construed the Motion as a request for an extension of time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5)(A) that challenged the order of dismissal, and denied the Motion for failure to demonstrate excusable neglect or good cause. ( See ECF No. 8).

On March 16, 2015, Mr. McAfee filed a "Motion to Alter or Amend Judgment Pursuant to Fed.R.Civ.P. 59(e)" (ECF No. 9) in this Court. In the Motion, Mr. McAfee moves the Court pursuant to Fed.R.Civ.P. 59(e) for relief from the March 4 Order denying his request for an extension of time. ( See ECF No. 18). Rule 59(e), however, concerns the filing of a motion to alter or amend a "judgement." See Fed.R.Civ.P. 59(e). In the instant case, Mr. McAfee is requesting that the Court reconsider its order denying his motion for an extension of time, not the underlying judgment. Therefore, the Court will consider the Motion under the proper rule, Fed.R.Civ.P. 60(b). See Marotta v. Cortez, No. 08-cv-02421-CMA-CBS, 2010 WL 1258022 (D. Colo. Mar. 29, 2010 (citing Broadway v. Norris, 193 F.3d 987 (8th Cir.1999) (holding that a motion for "reconsideration" that is directed to a nonfinal order as opposed to a judgment, should be construed as a Rule 60(b) motion). Rule 60(b) allows a court to grant relief from an order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud..., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or ...

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