Opinion
No. 92-3465-DES
March 18, 1993.
Anthony Peter Testa, pro se.
MEMORANDUM AND ORDER
This matter comes before the court on petitioner's motion for reconsideration of the court's dismissal of his second habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The court notes that some chronology of the events is necessary before the court addresses the motion.
Petitioner filed his first habeas corpus action in this court on September 12, 1990. By Memorandum and Order of April 10, 1992, this court dismissed the petition with prejudice and denied relief. Petitioner did not appeal from that order. On December 10, 1992, petitioner filed a second petition raising the same issues raised and decided on the merits in the first petition. On December 15, 1992, this court issued an Order to Show Cause within twenty days why the second petition should not be dismissed under Rule 9(b) as a successive petition. Petitioner's response was, therefore, due on January 4, 1993. On January 29, 1993, this court issued a Memorandum and Order finding that petitioner had failed to respond to the Order to Show Cause and dismissing the petition for writ of habeas corpus with prejudice.
On March 10, 1993, petitioner filed a motion for reconsideration and informing the court that the Rule 9(b) form sent by the court to petitioner to complete contained an erroneous address for the District Court and that the form was returned "undeliverable as addressed, no forwarding order on file." Petitioner also informed the court that he had sent his form to a friend, who apparently lived in Virginia, to type and mail the form on petitioner's behalf. Petitioner now complains that because his form was returned by the United States Postal Service, he did not have time to present his 9(b) form and avoid the dismissal of his claim for failure to respond.
The court acknowledges that the form contained an erroneous address for the court and regrets the error. However, from the materials petitioner sent, it appears he did not mail the form until after the January 4, 1993, deadline this court placed on the Order to Show Cause. In addition, the court notes petitioner failed to file the completed 9(b) form with his motion for reconsideration.
A motion for reconsideration must be filed within ten days of the order of judgment. Fed.R.Civ.Proc. 59(e). Petitioner has offered no reason for failing to file a timely motion from the January 29, 1993, Memorandum and Order dismissing the petition. Petitioner had until February 10, 1993, to file his motion. Having failed to do so, the court order that the motion for reconsideration be, and hereby is, denied.
IT IS THEREFORE BY THE COURT ORDERED that the motion for reconsideration is denied.