United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
7, 2009, in the District Court of Crawford County, Kansas,
Benjamin Burdick was sentenced to 324 months in prison for
multiple drug-related convictions and endangering a child. On
January 29, 2019, this Court denied Burdick's pro se
Amended Petition Under 28 U.S.C. § 2254 For
Writ Of Habeas Corpus By A Person In State Custody (Doc.
#6) filed September 20, 2017. See Memorandum And
Order (Doc. #26). This matter is before the Court on
Burdick's Motion And Memorandum To Alter/Amend
Judgment (Fed. R. Civ. P. 59) (Doc. #28) filed February
26, 2019. For reasons stated below, the Court overrules
59(e) motion to alter or amend judgment is essentially a
motion for reconsideration. The Court has discretion to
reconsider a final decision 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. Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). A motion to reconsider is not a
second opportunity for the losing party to make its strongest
case, to rehash arguments or to dress up arguments that
previously failed. See United States v.
Christy, 739 F.3d 534, 539 (10th Cir. 2014).
argues that the Court misapprehended his claims. Motion
And Memorandum To Alter/Amend Judgment (Doc. #28) at 2.
He maintains that his claims should be construed as follows:
“(1) his lawyers were constitutionally deficient for
not doing what needed to be done in regards to [Agent Shawn]
Campiti [of the Kansas Bureau of Investigation] and . . . the
judge; (2) neither [Agent Campiti] nor judge can rely on the
information in the affidavit to supply ‘probable
cause' (against Mr. Burdick) without recklessly
disregarding the truth of what the information says; and (3)
that the judge, on the information available, did not have a
substantial basis for concluding probable cause existed to
grant/uphold the warrant.” Id. At this stage,
petitioner cannot assert claims beyond the two claims that he
raised in his amended petition, i.e. (1) trial
counsel provided ineffective assistance because he did not
request a hearing under Franks v. Delaware, 438 U.S.
154, 164 (1978) and (2) appellate counsel provided
ineffective assistance because he failed to include the
search warrant affidavit in the record on
appeal. See Amended Petition (Doc. #6)
filed September 20, 2017, at 6, 11. Petitioner is not
entitled to relief from judgment so that he can expand the
scope of his claims.
motion to alter or amend judgment, petitioner does not assert
a change in controlling law or discovery of new evidence.
Liberally construed, petitioner's motion asserts the need
to prevent manifest injustice because (1) Agent Campiti
relied on statements by an informant without investigating
his credibility or attempting to corroborate his statements
and (2) Agent Campiti's affidavit lacked probable cause.
Motion And Memorandum To Alter/Amend Judgment (Doc.
#28) at 2. The Court addressed variations of both arguments
in the context of the two specific ineffective assistance
claims which petitioner raised in his petition. Agent
Campiti's alleged negligence in the investigation is
insufficient to warrant a Franks hearing or to
establish that counsel was ineffective because he failed to
ask for such a hearing. See Memorandum And Order
(Doc. #26) at 9-12. Next, petitioner's assertion that the
affidavit lacked probable cause does not establish that the
issuing magistrate judge did not have a substantial basis to
find probable cause to issue the warrant or that counsel
provided ineffective assistance in failing to include a copy
of Agent Campiti's affidavit on appeal. See id.
petitioner has not shown a sufficient basis to alter or amend
judgment. He largely seeks to reargue the same arguments
presented in his amended petition. For these reasons and for
substantially the reasons set forth in the Memorandum And
Order (Doc. #26), the Court overrules petitioner's
motion to alter or amend judgment.
IS THEREFORE ORDERED that Benjamin Burdick's
Motion And Memorandum To Alter/Amend Judgment (Fed.
R. Civ. P. 59) (Doc. #28) filed February 26, 2019 is
 Throughout the state proceedings as
well, petitioner asserted the same two ineffective assistance
claims. In state court, petitioner also asserted that the
evidence was insufficient to sustain his conviction for child
endangerment. Burdick v. State, 383 P.3d 181
(Table), 2016 WL 6138666, at *2 (Kan.Ct.App. 2016), rev.
denied, (Kan. June 20, ...