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Warfield v. Weber

April 22, 2009

KELLY D. WARFIELD, PETITIONER,
v.
DOUGLAS L. WEBER, WARDEN, SOUTH DAKOTA STATE PENITENTIARY; AND STATE OF SOUTH DAKOTA, RESPONDENTS.



The opinion of the court was delivered by: Andrew W. Bogue Senior District Judge

ORDER DENYING MOTION FOR RECONSIDERATION AND DENYING MOTION FOR APPOINTMENT OF EXPERT

On January 29, 2009, this Court denied Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and dismissed this case. Docket 72. On February 9, 2009, Petitioner filed a motion for appointment of expert, Docket 74, and a motion for reconsideration, Docket 75. Additionally, on February 27, 2009, Petitioner filed a motion for leave to take depositions, Docket 79, a motion for a certificate of appealability, Docket 82, and a motion to proceed in forma pauperis, Docket 83. For the reasons stated below, the Court denies Petitioner's motion for reconsideration, motion for appointment of expert, motion for leave to take depositions, and motion for certificate of appealability. Petitioner's motion for leave to proceed in forma pauperis is granted.

Motion to Reconsider

Federal Rule of Civil Procedure 60 provides the following regarding grounds for relief from a final judgment or order:

On motion and just terms, the court may relieve a party... from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b);

(3) fraud..., misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;...

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). In actions such as this one brought under 28 U.S.C. § 2254, Rule 60(b) applies only to the extent it is not inconsistent with applicable federal statutes and rules. Gonzalez v. Crosby, 545 U.S. 524, 529, 125 S.Ct. 2641, 162 L.Ed. 2d 480 (2005). A pleading framed as a motion to reconsider may be construed as a successive habeas petition if it contains a "claim," defined as "an asserted federal basis for relief from a state court's judgment of conviction." Id. at 530. In other words, if a motion raises "claims," it should be construed instead as a second or successive habeas petition, not a motion to reconsider. Id. at 531-32 (stating that permitting such a 60(b) filing would undesirably circumvent AEDPA's stringent requirements about second petitions). Successive habeas petitions are limited in several ways in 28 U.S.C. § 2244(b).

The Court has reviewed Petitioner's motion to reconsider. The Court declines to evaluate whether Petitioner's motion for reconsideration is one brought under Federal Rule of Civil Procedure 60(b), or whether it is a second petition, since it concludes that in either case Petitioner's motion must be denied.

Construing Petitioner's pro se motion for reconsideration liberally, as this Court must do, it concludes that none of Petitioner's claims presented in its motion fall within the confines of Federal Rule of Civil Procedure 60. In this motion, Petitioner merely reframes several of his earlier arguments from his petition in light of the Court's most recent order denying his habeas petition, and none of the grounds he raises falls within the Rule 60 categories listed above which permit reconsideration of an order.

Specifically, Petitioner's claims do not rely on newly-discovered evidence, as discussed in Rule 60(b)(2), nor does any improper action by an opposing party warrant reconsideration, as discussed in Rule 60(b)(3). Additionally, the Court does not believe that the judgment is void or that Petitioner raises any other reason which ...


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