Payton v. McKune

Full title: WALTER ALMON PAYTON, Petitioner v. DAVID McKUNE, Respondent

Court: United States District Court, D. Kansas

Date published: Jan 24, 2005

Civil Action No. 03-3460-CM (D. Kan. Jan. 24, 2005)

Opinion

Civil Action No. 03-3460-CM.

January 24, 2005

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge

This matter is before the court on petitioner's Motion for Reconsideration (Doc. 24) and Renewed Motion for Reconsideration (Doc. 26). Petitioner requests reconsideration of his writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner confined at the Lansing Correctional Facility, proceeds pro se.

I. Standard

A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted only if the moving party can establish: (1) an intervening change in 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. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10^th Cir. 1995). Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10^th Cir. 1996).

II. Discussion

The court initially granted defendant's motion to dismiss on statute of limitations grounds. In this case, petitioner's state court convictions were affirmed by the Kansas Court of Appeals on February 18, 2000, and review was denied by the Kansas Supreme Court on May 2, 2000. Petitioner's conviction was therefore final on July 30, 2000, the time when his application for certiorari to the United States Supreme Court expired.

Accordingly, the one-year statute of limitations began running July 31, 2000, and ran for 270 days before petitioner filed his § 60-1507 motion on April 27, 2001. The statute of limitations was tolled until March 24, 2003, when the Kansas Supreme Court denied review of petitioner's § 60-1507 proceeding. Petitioner filed this action December 3, 2003. The court concluded that petitioner's action was filed at least 150 days after expiration of the one-year period for filing a federal habeas corpus action. 28 U.S.C. § 2244(d)(1).

Petitioner submits that the 270-day delay in filing for state post-conviction relief should be attributed to the Paul E. Wilson Defender Project at the University of Kansas. Petitioner fails, however, to explain the reason for the 270-day lapse, other than it was a "waste." Petitioner again fails to demonstrate that the 270-day lapse should be equitably tolled. Marsh v. Soares, 223 F.3d 1217, 1220 (10^th Cir. 2000) (equitable tolling "is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control"). Petitioner has not shown that extraordinary circumstances existed that delayed his timely filing of an application for federal habeas relief with this court.

Petitioner further submits arguments about his actual innocence, arguments petitioner has raised in all other prior pleadings. Petitioner is simply rehashing issues previously considered and rejected.

IT IS THEREFORE ORDERED that petitioner's Motion for Reconsideration (Doc. 24) and Renewed Motion for Reconsideration (Doc. 26) are denied.