Strong v. Heimgartner

CALVIN C. STRONG, Petitioner, v. JAMES HEIMGARTNER, Respondent.

CASE NO. 16-3101-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 8, 2020

MEMORANDUM AND ORDER

This matter is before the Court on a Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) filed by Petitioner (ECF No. 56) challenging the order of the district court dismissing Mr. Strong's petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner, a prisoner incarcerated in a Kansas correctional facility, proceeds pro se. For the reasons discussed below, the Court denies Petitioner's motion.

I. Rule 59(e) Standard

Ordinarily, to obtain relief under Rule 59(e), a civil litigant must demonstrate that there has been an intervening change in the controlling law, that there is new evidence previously unavailable, or that there is a need to correct clear error or prevent manifest injustice. Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1153 (10^th Cir. 2012) (citing Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10^th Cir. 2000)). However, when presented with a Rule 59(e) motion in the context of a federal habeas corpus case, the Court must first determine if it has jurisdiction under the Antiterrorism and Effective Death Penalty Act (AEDPA). This depends on whether the motion is a "true" Rule 59(e) motion or a second or successive § 2254 petition. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10^th Cir. 2006) (considering whether a Rule 60(b) motion was actually a second or successive § 2254 petition); see also United States v. Pedraza, 466 F.3d 932, 933 (10^th Cir. 2006) (explaining that Rule 59(e) motions are subject to the same analysis as Rule 60(b) motions). If the motion is actually a second or successive § 2254 petition, the movant must obtain prior authorization from the Tenth Circuit Court of Appeals to proceed. Spitznas, 464 F.3d at 1217. If, however, the court concludes it is a "true" Rule 59(e) motion, it may rule on the motion as it would a Rule 59(e) motion in any other case. Id.

The Tenth Circuit has described two categories of "true" Rule 60(b) (or 59(e)) motions: "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." Spitznas, 464 F.3d at 1215-16. Conversely, a Rule 59(e) motion that "challeng[es] the habeas court's previous ruling on the merits of [a habeas] claim" should be treated as a second or successive habeas petition. Id. at 1216; see also Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (explaining that a Rule 60(b) motion should be treated as a second or successive habeas petition "if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the [habeas corpus] statutes, entitled to habeas relief" (emphasis in original; footnote omitted)).

II. Analysis

A. Petitioner's motion is a "mixed" motion.

Under this analysis, the Court finds that Petitioner's motion should be treated in part as a second or successive petition under § 2254 and in part as a "true" Rule 59(e) motion. In his Petition, Mr. Strong asserts two grounds for habeas relief: (1) the Shawnee County District Court violated his due process rights by failing to rule or take any action on his post-conviction motions for collateral review; and (2) the same court did not have jurisdiction to convict him because of violation of the State speedy trial statute. The Court dismissed his Petition because (1) a due process violation grounded in collateral proceedings does not provide grounds for federal habeas relief, and (2) the speedy trial claim is a state law claim that has been procedurally defaulted.

In his motion, Petitioner attempts to reargue the due process claim and expand upon his challenges to his conviction by arguing there was a conspiracy to deprive him of his rights. He cites several cases for the proposition that "excessive delay in the appellate process may also rise to the level of a due process violation." ECF No. 56, at 3. These arguments are in the nature of second or successive habeas claims.

Petitioner also argues the Court erred in dismissing his habeas petition because he demonstrated actual innocence, and the Court could not make an informed decision on that issue without reviewing the document filed by Patricia Evans in the Tenth Circuit, which "outlines [Petitioner's] arguments concerning [his] actual innocence." ECF No. 56, at 2. The actual innocence claim can go to overcoming the procedural default of his speedy trial claim. A motion asserting a habeas petition was incorrectly dismissed based on a procedural bar constitutes a true 59(e) motion. See Spitznas, 464 F.3d at 1216.

In the case of a "mixed" motion - that is, a motion containing both true Rule [59(e)] allegations and second or successive habeas claims - the district court should (1) address the merits of the true Rule [59(e)] allegations . . . , and (2) forward the second or successive claims to [the Tenth Circuit] for authorization." Id. at 1217.

B. Petitioner's second or successive habeas claims must be dismissed for lack of jurisdiction.

Because the Court construes Petitioner's rehashing of the due process claim and the conspiracy allegation as second or successive habeas claims, that portion of the motion must be dismissed for lack of jurisdiction as Petitioner failed to obtain the requisite authorization before filing the motion. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by [§ 2244(b)] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) ("A district court does not have jurisdiction to address the merits of a second or successive ... § 2254 claim until [court of appeals] has granted the required authorization.").

However, Petitioner filed a timely appeal to challenge this Court's denial of his habeas petition. Therefore, the Court finds that the "interest of justice" does not warrant transfer of this matter to the Tenth Circuit Court of Appeals for authorization under § 2244(b)(3). See Cline, 531 F.3d at 1250-53 (discussing factors to consider in determining whether transfer under § 1631 is appropriate).

C. Petitioner's "true" Rule 59(e) motion must be denied because Petitioner has not demonstrated a change in the controlling law, new evidence previously unavailable, or a need to correct clear error.

As noted above, a successful 59(e) motion must demonstrate that there has been an intervening change in the controlling law, that there is new evidence previously unavailable, orthat there is a need to correct clear error. Somerlott, 686 F.3d at 1153. "Rule 59(e) relief is appropriate only where the court has misapprehended the facts, a party's position, or the controlling law." Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228 (10^th Cir. 2009) (internal quotation marks omitted). Such a motion may not be used to rehash arguments that have been addressed by the Court or to present new legal theories or facts that could have been presented earlier. Servants of the Paraclete, 204 F.3d at 1012.

While not entirely clear, Petitioner appears to be arguing the Court committed clear error in that the state court's failure to address the pending collateral post-conviction motion did in fact violate his due process rights (a rehashing of previous arguments) and that the procedural default of his speedy trial claim should be excused to prevent manifest injustice because of his actual innocence.

1. The state court's failure to address Petitioner's collateral post-conviction motion does not provide a basis for federal habeas review.

The first ground has been previously examined and rejected by the Court. Mr. Strong continues to argue that his criminal appeal has been thwarted for 38 years in violation of his right to due process. He cites numerous cases in support. One case, Hannon v. Maschner, 981 F.2d 1142 (10^th Cir. 1992), is representative. Petitioner summarizes the case as "[a]fter 33 years of trying to get his direct appeal through appellate review, the court granted the prisoner a writ of habeas corpus and ordered him released from custody." ECF No. 56, at 10. As explained above, this is a second or successive habeas claim. However, even if it were not, it would fail.

Petitioner continues to fail to note the determinative difference between Mr. Hannon's case and his: Mr. Hannon never had the opportunity to directly appeal his conviction. Here, Petitioner completed the direct appeal of his conviction with affirmance by the Kansas SupremeCourt. The motions never addressed by the state court here were for collateral review of his conviction. This distinction makes all the difference from a constitutional standpoint.

As the U.S. Supreme Court has explained, "[t]he principle that collateral review is different from direct review resounds throughout our habeas jurisprudence." Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (citing see, e.g., Wright v. West, 505 U.S. 277, 292-293 (1992) (opinion of THOMAS, J.); Teague v. Lane, 489 U.S. 288, 306 (1989) (opinion of O'CONNOR, J.); Pennsylvania v. Finley, 481 U.S. 551, 556-557 (1987); Mackey v. United States, 401 U.S. 667, 682 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). "Direct review is the principal avenue for challenging a conviction." Id. "When the process of direct review—which, if a federal question is involved, includes the right to...