United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241 by a prisoner in federal custody. On June 23,
2017, the Court denied relief. On July 3, 2017, petitioner
filed a motion for reconsideration (Doc. #6) and a pleading
captioned as Judicial Notice to the Court (Doc. #7). On July
7, 2017, he filed a Notice of Appeal (Doc. #8).
Motion for Reconsideration
Court liberally construes the motion for reconsideration and
the accompanying request for judicial notice as a motion to
alter or amend the judgment filed under Rule 59(e) of the
Federal Rules of Civil Procedure. See Phelps v.
Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)(where a
motion concerns “reconsideration of matters properly
encompassed in a decision on the merits” it is examined
under Rule 59(e)).
under Rule 59(e) is limited and may be granted only if the
moving party establishes “(1) an intervening change in
the controlling law, (2) new evidence [that was] previously
unavailable, [or] (3) the need to correct clear error or
prevent manifest injustice.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
However, reconsideration is “not available to allow a
party to reargue an issue previously addressed by the court
when the reargument merely advances new arguments or
supporting facts which were available for presentation at the
time of the original argument.” FDIC v. United Pac.
Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998)(quoting
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577
(10th Cir. 1996)).
motion for reconsideration, petitioner concedes that the
decision in Mathis v. United States, 136 S.Ct. 2243
(2016) does not apply retroactively on collateral review. He
contends instead that the Mathis ruling is a
“watershed” ruling and that, as such, it should
be applied retroactively. The Court rejects this argument. As
the Court explained in the Memorandum and Order denying
relief, the case law in this Circuit and in the Sixth
Circuit, where petitioner was convicted, has held that the
Mathis decision did not announce a new rule of
constitutional law and does not apply retroactively on
collateral review. See United States v. Taylor, 672
Fed.Appx. 860, 864 (10th Cir. 2016)(collecting cases) and
Proctor v. United States, 2017 WL 2802174, at *2
(W.D. Ky. June 28, 2017)(“The Supreme Court's
decision in Mathis did not create a new rule of law
which applies retroactively to cases on collateral
filed no appeal following his guilty plea, and he has sought
relief twice under 28 U.S.C. § 2255. Petitioner may now
seek collateral relief under the Mathis decision
only if it is determined to be a new rule that applies
retroactively on collateral review, and there is no authority
in this Circuit for such application. Petitioner has not
identified any contrary authority, and the Court finds no
basis to allow this matter to proceed under 28 U.S.C. §
2241 or to warrant its transfer to the district of his
conviction. The Court therefore will deny the motion for
Notice of Appeal
federal prisoner, petitioner is not required to obtain a
certificate of appealability in order to seek review of the
denial of relief in an application for habeas corpus filed
under 28 U.S.C. § 2241. Hale v. Fox, 829 F.3d
1162, 1165, n. 1 (10th Cir. 2010).
because the petitioner's Notice of Appeal does not
suggest that he presents “a reasoned, nonfrivolous
argument on the law and facts”, the Court denies leave
to proceed on appeal in forma pauperis. See McIntosh v.
U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir.
THEREFORE, BY THE COURT ORDERED petitioner's motion for
reconsideration (Doc. #6) is construed as a motion filed
under Rule 59(e) of the Federal Rules of Civil Procedure and
FURTHER ORDERED petitioner is denied leave to proceed on
appeal in forma pauperis.