July 1, 2013
JOHN GREGORY LAMBROS, Petitioner,
CLAUDE MAYE, Respondent.
RICHARD D. ROGERS, District Judge.
This action was dismissed and all relief was denied by Memorandum and Order entered May 17, 2013. The matter is now before the court upon petitioner's Motion to Alter or Amend Judgment... Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, " which was timely filed on June 8, 2013. Having considered the motion, the court finds that it fails to state grounds for relief.
RULE 59(e) STANDARDS
"A motion to alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e) may be granted only if the moving party can establish (1) an intervening change in controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice." Wilkins v. Packerware Corp., 238 F.R.D. 256, 263 (D. Kan. 2006), aff'd, 260 Fed.Appx. 98 (10th Cir. 2008)(citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)). Rule 59(e) does not permit a losing party to rehash or restate arguments previously addressed or to present new legal theories or supporting facts that could have been raised earlier. Id. (citing Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied, 520 U.S. 1181 (1997)); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Steele v. Young, 11 F.3d 1518, 1520 n. 1 (10th Cir. 1993); see also Charles Alan Wright, et al., Federal Practice and Procedure: Civil 2d § 2810.1 ("The Rule 59(e) motion may not be used... to raise arguments or present evidence that could have been raised prior to the entry of judgment."); Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.)(A 59(e) motion is not "a second chance for the losing party to make its strongest case or to dress up arguments that previously failed."), aff'd, 43 F.3d 1484 (10th Cir. 1994). The party seeking relief from a judgment bears the burden of demonstrating that he satisfies the prerequisites for such relief. Van Skiver v. U.S., 952 F.2d 1241, 1243-44 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
Petitioner moves the court to alter or amend its judgment based upon one of the three available grounds: to correct or prevent clear error or manifest injustice. As support for his motion, petitioner again sets forth a barrage of claims, arguments, and cites and quotes from many cases, none of which convinces the court that he is entitled to relief. Some of his allegations are: he believes this court has jurisdiction to review his claim(s) "under the writ of Audita Querela, " which the court never mentioned; he proved he was sentenced to an illegal sentence that was vacated; he qualifies for the "actual innocence" and the "miscarriage of justice" exceptions; he was not allowed to raise his ineffective assistance of counsel claim on direct appeal under Eight Circuit law; he filed Rule 33 motions that were incorrectly construed by the sentencing court as his first § 2255 motion; in April 1997 he filed his first § 2255 motion to attack only three of the four counts of conviction because his resentencing on Count 1 was on direct appeal; and he was never provided the § 2255 remedy to attack his conviction of count 1 because his attempt to file a § 2255 motion in 1999 was found to be second and successive. The court is again asked to vacate petitioner's convictions and sentences. The court has reviewed every argument and citation presented in the motion and, like in its order of dismissal, discusses only the main allegations and those it finds warrant some discussion.
In his motion, Mr. Lambros states that the court was correct in finding it lacked jurisdiction under 28 U.S.C. § 2241, but then argues that the court erred by failing to find that it had jurisdiction "pursuant to the Writ of Audita Querela" under the All Writs Act, 28 U.S.C. § 1651(a). This argument has no merit. First, petitioner presented no legal or factual basis whatsoever in his petition showing his entitlement to relief under § 1651(a). Instead, he merely cited this provision and writ on the first and two other pages of his 19-page petition with no discussion as to why the writ would be an available remedy to challenge his conviction or why this court would have jurisdiction to issue this ancient writ with regard to his Minnesota convictions. Conclusory assertions do not entitle a petitioner to relief and need not be discussed by the court. Nor may a court construct arguments on behalf of a pro se litigant.
Second, petitioner's assertion that this court has jurisdiction under § 1651(a) utterly lacked legal merit for the same reason and more as his assertion of jurisdiction under § 2241. Numerous federal prisoners have asserted that this ancient writ is an alternative remedy for challenging their convictions after they failed to obtain relief at trial, on direct appeal, and in § 2255 motions. However, they appropriately did so in the sentencing court where the judgment the writ is sought to act upon was entered. As one often-quoted Circuit Court explained years ago:
The ancient writ of audita querela, long ago abolished in federal civil proceedings, see Fed.R.Civ.P. 60(b), has no apparent relevance to criminal sentences. Black's Law Dictionary 126 (7th ed. 1999), describes it as a "writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses." (Petitioner) is not a judgment debtor, and the territory of new facts and law is occupied for civil matters by Rule 60(b) and for criminal matters by Fed.R.Crim.P. 33 plus § 2255. Prisoners cannot avoid the AEDPA's rules by inventive captioning. Any motion... substantively within the scope of § 2255, ... is a motion under § 2255, no matter what title the prisoner plasters on the cover. Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, (or) writ of error... the name makes no difference. It is substance that controls. (Citations omitted).
Melton v. U.S., 359 F.3d 855, 856-57 (7th Cir. 2004); Holly, 435 Fed.Appx. at 734 (quoting Melton, 359 F.3d at 857); United States v. Baker, ___ F.3d ___, 2013 WL 1867427 (10th Cir. 2013)(same); Torres, 282 F.3d at 1246. This "inventive" assertion of jurisdiction has failed repeatedly in sentencing courts across the nation, and petitioner here presented no authority or reasoned basis to view it more favorably in this court having no connection to his sentencing, conviction, or decisions regarding his § 2255 motions. Thus, had this court expressly discussed petitioner's alternative assertion of jurisdiction, it would still have rejected it.
If petitioner is implying that the court erred by failing to discuss his "and/or" list following his citation of § 2241, this argument does not entitle him to relief from judgment. As the court stated in its prior order, it reviewed all petitioner's allegations and complaints, his attachments, and the relevant legal authority. His listing of the All Writs Act with no discussion of facts or legal authority in support did not warrant specific discussion by the court.
Other than the foregoing main claim of legal error, petitioner's allegations in his motion are nothing more than the rehashing and restating of arguments already rejected by the court or additional arguments that could have been presented prior to dismissal. Such allegations do not entitle petitioner to relief under Rule 59(e).
Furthermore, petitioner's allegations in his motion that directly seek relief from his conviction are likewise not properly raised in a Rule 59(e) motion. See Baker, 2013 WL at 1867427("[A] 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.").
Finally, the court reiterates that before ruling on any of petitioner's numerous underlying claims, arguments, and citations regarding his convictions, it examined whether or not it had jurisdiction over his petition under the primary source in the custodial judicial district - § 2241, and found that it did not. As a result, this court could not consider petitioner's claim(s) on the merits. The reasons for this court's dismissal of this petition for lack of jurisdiction and the legal standards applied were fully explained in its Memorandum and Order of Dismissal. Petitioner's restatement and refinement of his myriad arguments and his disagreement with the findings and rulings of the court fail to demonstrate the existence of any extraordinary circumstances that would justify a decision to alter or amend the judgment dismissing this action.
DENIAL OF CERTIFICATE OF APPEALABILITY
Ordinarily, a federal prisoner does not need a certificate of appealability for appellate review of the denial of a § 2241 petition. See 28 U.S.C. § 2253(c). However, in his petition and this motion, Mr. Lambros is clearly attempting to obtain review of his federal criminal conviction. Several Circuit Courts have held that a certificate of appealability is required under these circumstances. Thus, to the extent that one may be required, the court finds that petitioner has made no "substantial showing of the denial of a constitutional right" with respect to an appeal of either the order of dismissal or this order denying this motion. As the court already has done with regard to its prior order of dismissal, it hereby certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the instant order would not be taken in good faith. Petitioner's request that this court "retract" its previous denial of certification is denied. Accordingly, in forma pauperis status is denied for purpose of any appeal in this matter. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
IT IS THEREFORE ORDERED that petitioner's Motion to Alter or Amend Judgment pursuant to Fed.R.Civ.P. Rule 59(e) is denied, and that a certificate of appealability is denied.
IT IS SO ORDERED.