Beauclair (ID 74638) v. Goddard et al, No. 5:2010cv03128 - Document 40 (D. Kan. 2013)
Court Description: MEMORANDUM AND ORDER denying 39 Motion of Petitioner for Reconsideration of 37 Memorandum & Order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 3/13/2013. Mailed to pro se party: Mr. Danny E. Beauclair, Reg. No. 74638, El Dorado Correctional Facility-Oswego SEU, 2501 W. 7th Street, Oswego, KS 67356 by regular mail. (bmw)
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Beauclair (ID 74638) v. Goddard et al Doc. 40 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS DANNY E. BEAUCLAI R, Pet it ioner, v. Case No. 10- 3128- SAC JOHNNI E GODDARD, et al., Respondent s. M EM ORAN D UM AN D ORD ER This habeas case com es before t he Court on Pet it ioner’s m ot ion for reconsiderat ion of t he Court ’s denial of his habeas pet it ion. St a n da r d for M ot ion t o Re con side r The Federal Rules of Civil Procedure do not specifically provide for a m ot ion for reconsiderat ion. See Hat field v. Bd. Of Count y Com m 'rs for Converse Count y, 52 F.3d 858, 861 ( 10t h Cir. 1995) . The court considers a m ot ion t o reconsider as eit her a m ot ion t o alt er or am end filed pursuant t o Rule 59( e) or a m ot ion for relief from j udgm ent filed pursuant t o Rule 60( b) , depending on it s filing dat e. Because pet it ioner filed t his m ot ion wit hin 28 days from t he ent ry of j udgm ent , t he court t reat s it as filed pursuant t o Rule 59( e) . Pet it ioner m ust t herefore show ( 1) an int ervening change in t he cont rolling law; ( 2) new evidence t hat could not have been produced previously by due diligence; or ( 3) t he need t o correct clear error or prevent Dockets.Justia.com m anifest inj ust ice. Servant s of Paraclet e v. Does, 204 F.3d 1005, 1012 ( 10t h Cir. 2000) . Pet it ioner assert s only t he lat t er. Pr ope r Le ve l of D e fe r e n ce Pet it ioner cont ends t hat t he Court erred in finding his claim s had been adj udicat ed on t he m erit s in st at e court and in applying a deferent ial st andard of review. Pet it ioner appears t o believe t hat st at e court decisions m ade wit hout an evident iary hearing are not decisions on t he m erit s. The Suprem e Court does not share Pet it ioner’s narrow view of what const it ut es a decision on t he m erit s. See Johnson v. William s, 506 U.S. __, 2013 WL 610199 ( Feb. 20, 2013) . AEDPA's deferent ial st andards of review apply even absent evident iary hearings and do not even require an opinion from t he st at e court explaining it s reasoning. Harringt on v. Richt er, __ U.S. __, 131 S.Ct . 770, 784 ( 2011) . AEDPA st andards do require t he st at e court t o review and evaluat e t he evidence of record and t he part ies' subst ant ive argum ent s. Johnson, 2013 WL 610199, at 8. The st at e court did so in t his case, ruling on t he m erit s of t he sam e claim s which t his court properly reviewed deferent ially. Pr oce du r a l D e fa u lt Pet it ioner challenges t his Court ’s finding t hat som e of his claim s were procedurally default ed, cont ending t hat any failure is excused by j udicial est oppel, fraud, fut ilit y, and int erference by st at e court officials. Pet it ioner assert s int erference by t he St at e’s defense of res j udicat a and by t he KCOA’s 2 finding t hat Pet it ioner failed t o show m anifest inj ust ice or except ional circum st ances ( 2010 WL 596992 at * 4) . Pet it ioner erroneously assert s t hat any such finding could be m ade only by t he t rial court and not by t he KCOA. These assert ed except ions could have been raised earlier. This m ot ion is not t o be used t o rehash previously rej ect ed argum ent s or t o offer new legal t heories or fact s t hat could have been offered previously. Achey v. Linn Count y Bank, 174 F.R.D. 489, 490 ( D.Kan. 1997) . Nor is a m ot ion t o reconsider “ a second chance for t he losing part y t o m ake it s st rongest case or t o dress up argum ent s t hat previously failed.” Voelkel v. Gen. Mot ors Corp., 846 F.Supp. 1482, 1483 ( D.Kan.) , aff'd, 43 F.3d 1484 ( 10t h Cir. 1994) . Ple a H e a r in g Er r or s Pet it ioner assert s t hat because in Kansas, due process requires t he dist rict court t o inform a defendant at t he plea hearing of t he m axim um possible sent ence, he had a st at e- creat ed right under Hicks v. Okla, 447 U.S. 343 ( 1980) . But violat ion of a st at e- creat ed right , even if it exist s, is not a basis for habeas relief, since habeas review is lim it ed t o violat ions of federal const it ut ional right s. Est elle v. McGuire, 502 U.S. 62, 67- 68 ( 1991) . Pet it ioner also cont ends t hat accept ing a plea and t hus convict ing him wit hout any fact ual basis cannot be cured aft er t he fact . But t his is “ t he kind of problem t hat t he Due Process Clause is well suit ed t o cure.” Blakely v. Washingt on, 542 U.S. 296, 344 ( 2004) . The opport unit y t o be heard is “ an 3 opport unit y which m ust be grant ed at a m eaningful t im e and in a m eaningful m anner.” Arm st rong v. Manzo, 380 U.S. 545, 552 ( 1965) . Here, as t he Court previously found, any deprivat ion was harm less and was t im ely cured because t he t rial court accept ed t he plea court only m om ent arily before realizing it s error, t hen im m ediat ely went back on t he record t o have t he prosecut ion present t he fact ual basis for t he plea and t he Pet it ioner affirm it s t rut h. I n n oce n ce Pet it ioner alleges t hat in addressing his claim of act ual innocence, t he Court erred in relying on Herrera v. Collins, 506 U.S. 390 ( 1993) , when Pet it ioner also relied on Schlup v. Delo, 513 U.S. 298 ( 1995) . I n Herrera, t he pet it ioner alleged a subst ant ive const it ut ional claim t hat t he execut ion of an innocent person pursuant t o even an error- free t rial would violat e t he Eight h Am endm ent . I n Schlup, t he pet it ioner raised a claim of act ual innocence t o avoid a procedural bar t o t he considerat ion of t he m erit s of his ot her const it ut ional claim s. The Court ’s decision addressed Pet it ioner’s claim of alleged innocence bot h as a subst ant ive claim , and as Schlup gat eway claim . No error in t hat analysis has been shown. Evide n t ia r y issu e s Pet it ioner cont ends t hat t he Court failed t o consider t he fact s he alleged in his verified pleadings. But it is not t he prerogat ive of t his Court t o 4 weigh t he fact s. I nst ead, it m ust presum e t hat t he st at e court 's fact ual findings are correct , absent clear and convincing evidence t o t he cont rary. 28 U.S.C. § 2254( e) ( 1) ; Saiz v. Ort iz, 392 F.3d 1166, 1175 ( 10t h Cir. 2004) . Pet it ioner also obj ect s t o t his court ’s reference t o his counsel’s affidavit , which st at ed t hat she inform ed Pet it ioner of t he correct possible sent ences before his plea hearing. Pet it ioner believes t he affidavit is hearsay, was not draft ed by counsel, was not read by counsel before she signed it , and is fraud upon t he court . But any evident iary obj ect ions t o t he affidavit should have been lodged in st at e court and are not a basis for habeas relief. A reviewing court m ay not usurp t he role of t he finder of fact by considering how it would have resolved t he conflict s, m ade t he inferences, or considered t he evidence at t rial. See Jackson v. Virginia, 443 U.S. 307, 318–19 ( 1979) ; Kelly v. Robert s, 998 F.2d 802, 808 ( 10t h Cir. 1993) . Concerning t he vict im ’s affidavit recant ing her t est im ony, Pet it ioner invit es t he Court t o ignore t he recant at ion and t o use st at em ent s by t he vict im and t he Pet it ioner which are not included in t he record. Alt ernat ively, Pet it ioner invit es t he Court t o rely on Kansas cases dealing wit h recant at ion, saying t he court should det erm ine it s t rut h by holding an evident iary hearing. Dk. 39, p. 13. Again, it is not t he role of t his Court on habeas review t o weigh t he evidence, t o det erm ine credibilit y, or t o rule upon t he adm ission of evidence. “ [ T] he assessm ent of t he credibilit y of wit nesses is 5 generally beyond t he scope of review.” Schlup, 513 U.S. at 330. See Wright v. West , 505 U.S .277, 296–97 ( 1992) . Pet it ioner also cont ends t hat t his Court ’s own denial of an evident iary hearing was error because disput ed m at erial fact s require a full hearing. Specifically, Pet it ioner seeks t o challenge t he reliabilit y of counsel’s affidavit regarding her advice t o Pet it ioner on t he pot ent ial lengt h of his sent ence, and t he t rut h of t he vict im ’s affidavit recant ing her t est im ony. Underlying t his argum ent is Pet it ioner’s erroneous belief t hat t he record consist s solely of t est im ony given from t he wit ness st and, and not of affidavit s, verified pleadings, or ot her m at t ers. Dk. 39, p. 15. But t his Court properly found t hat t he record was sufficient t o resolve t he claim s raised by Pet it ioner, given it s lim it ed scope of review. Con clu sion Pet it ioner has not shown t he need t o correct clear error or prevent m anifest inj ust ice. I T I S THEREFORE ORDERED t hat Pet it ioner’s m ot ion for reconsiderat ion is denied. Dat ed t his 13t h day of March, 2013, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 6
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