Opinion
Civil Action No. 08-cv-02179-ZLW.
February 25, 2009
ORDER
Applicant Claudia (Claude) E. Burton III filed a "Motion to Alter/Amend Order Denying Motion to Reconsider Pursuant to Fed.R.Civ.P. 59(e)," on February 9, 2009. In the Motion to Alter/Amend, Applicant asks that the Court review and consider the two separate Addendums that she filed subsequent to the Objection and Petition for Redress, which she filed on January 15, 2009. Applicant further asks the Court to reconsider the denial of her Objection and Petition for Redress. The Court construed the Objection and Petition for Redress as a Motion to Reconsider filed pursuant to Fed.R.Civ.P. 59(e) and denied the Motion on February 2, 2009.
Upon review of the February 9, 2009, Motion to Alter/Amend, the Court finds that Applicant fails to demonstrate some reason why the Court should vacate the February 2, 2009, Order that denies Applicant's Motion to Reconsider. Applicant asserts nothing in either the Motion to Alter/Amend or the Addendum filed on January 28, 2009, that would merit the reconsideration of the January 7, 2009, Order of Dismissal, in which the Court found that Applicant's claims are procedurally barred in a 28 U.S.C. § 2254 action. In the Addendum, Applicant filed on January 29, 2009, she does assert actual innocence. A claim of actual innocence may warrant equitable tolling in a federal habeas action. See Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000). To establish actual innocence, however, Applicant must "support [her] allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo , 513 U.S. 298, 324 (1995). Applicant fails to present any new reliable evidence to demonstrate her actual innocence. Accordingly, it is
ORDERED that Applicant's Motion to Alter/Amend Order Denying Motion to Reconsider Pursuant to Fed.R.Civ.P. 59(e) is denied.