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May v. State

United States District Court, Tenth Circuit

December 18, 2013

TOMMY MAY, Petitioner,
STATE OF KANSAS, et al., Respondents.


SAM A. CROW, Senior District Judge.

On October 15, 2013, the court found that this application for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 was second and successive as well as time-barred and dismissed this action for lack of jurisdiction. This matter is before the court upon petitioner's "Motion to Alter Findings of Fact pursuant to Rule 52(b)"[1] (Doc. 9) of the Federal Rules of Civil Procedure and Amended Motion to Alter Findings (Doc. 10). Petitioner seeks to overturn this court's dismissal and findings that the petition filed in this case was time-barred[2] and successive. The court finds that no valid grounds for relief from judgment are presented and denies the motion.


Mr. May timely filed his Rule 52(b) motion within 28 days of the judgment entered herein. Generally, Rule 52(b) applies to findings of fact and conclusions of law entered after a non-jury trial. In this case, the court did not enter specific findings of fact or conclusions of law pursuant to Rule 52(a), and this motion might be more properly considered as one under Rule 59(e). However, the result would be the same under either Rule.

"A motion made pursuant to Rule 52(b) will only be granted when the moving party can show either manifest errors of law or fact, or newly discovered evidence; it is not an opportunity for parties to relitigate old issues or to advance new theories." Myers v. Dolgencorp, Inc., 2006 WL 839458, *1 (D.Kan. 2006)(citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (2d ed. 1995)). Similarly, a "motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the 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." Id. (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995). Neither type of motion permits a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. See 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). A Rule 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." Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). The party seeking relief from a judgment bears the burden of demonstrating 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).


As grounds for petitioner's motion, he argues that he is entitled to a years-later start date to the federal statute of limitations in his case because he was not aware of the factual basis for his ambiguous sentence claim until sometime between 2006 and 2009 and that a remand order by the Kansas Court of Appeals in 2011 somehow restarted the federal statute of limitations for all his sentencing claims. In addition, he argues that this court erred in finding his petition was untimely because he was entitled to additional statutory tolling due to the pendency of his state post-conviction motions.

The court initially notes that the arguments raised in this post-judgment motion are ones that either were already made and rejected or could have been made prior to entry of judgment. As a result, they are generally not appropriate grounds for relief from judgment. In addition, these arguments have no factual or legal merit.

The court rejects petitioner's claim that he was entitled to a later start date. A prisoner in state custody must file his federal habeas petition "within the one-year limitation period set forth in [28 U.S.C.] § 2244(d)(1)." Sigala v. Bravo, 656 F.3d 1125, 1126 (10th Cir. 2011); see Gonzales v. Thaler, 132 S.Ct. at 652-53. The one-year period runs from the latest of four dates specified in § 2244(d)(1), which provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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