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Messer v. United States

United States District Court, D. Utah

May 29, 2018

TERRY ARNOLD MESSER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND DENYING PETITIONER'S MOTION FOR RECONSIDERATION

          Ted Stewart United States District Judge.

         This matter is before the Court on Petitioner's Motion for Reconsideration. For the reasons discussed below, the Court will deny Petitioner's Motion to the extent that it is a true motion for reconsideration and dismiss for lack of jurisdiction the remainder of Petitioner's Motion.

         I. BACKGROUND

         Petitioner was charged on February 28, 2013, with one count of distribution of methamphetamine. A Superseding Indictment was filed on April 24, 2013. Petitioner pleaded guilty on August 15, 2013, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

         On November 7, 2013, the Court accepted the plea agreement and, in accordance with that agreement, imposed a sentence of 240 months. Judgment was entered on November 13, 2013.

         Petitioner did not file a direct appeal. However, Petitioner filed a Petition for Writ of Error Coram Nobis on June 18, 2014. Petitioner then filed a § 2255 motion on June 19, 2014, and requested the Court construe his Petition for Writ of Error Coram Nobis as a § 2255 motion.

         Petitioner later sought dismissal of his § 2255 motion. The Court granted that request and dismissed Petitioner's original § 2255 motion without prejudice on October 21, 2014.

         Petitioner filed a Motion on April 3, 2018, again requesting relief under § 2255. In that Motion, Petitioner asserted that his counsel was ineffective during the pretrial, plea, sentencing, and direct appeal process. The Court dismissed Petitioner's Motion as untimely on April 11, 2018. Petitioner now seeks reconsideration under Federal Rule of Civil Procedure 59(e).

         II. DISCUSSION

         The Tenth Circuit Court of Appeals has provided the “steps to be followed by district courts in this circuit when they are presented with a Rule 60(b) motion in a habeas or § 2255 case.”[1] Rule 59(e) motions are subject to the same analysis.[2] The Court must first determine whether the motion is a true Rule 59(e) motion or a second or successive petition.[3]

If the district court concludes that the motion is a true Rule [59(e)] motion, it should rule on it as it would any other Rule [59(e)] motion. If, however, the district court concludes that the motion is actually a second or successive petition, it should refer the matter to [the Tenth Circuit] for authorization . . . .[4]

         A Rule 59(e) “motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.”[5]

Conversely, it is a “true” [59(e)] motion if it either (1) challenged only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.[6]

         Under this analysis, the Court finds that Petitioner's Motion for Reconsideration has elements of both a true motion and a second or successive petition. Petitioner's Motion is a true motion to the extent that it challenges the Court's prior ruling that his § 2255 motion was untimely.[7] Having carefully reviewed ...


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