United States District Court, D. Utah
MEMORANDUM DECISION AND DENYING PETITIONER'S
MOTION FOR RECONSIDERATION
Stewart United States District Judge.
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.
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
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.
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.
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.
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).
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.” Rule 59(e) motions are subject to the same
analysis. The Court must first determine whether the
motion is a true Rule 59(e) motion or a second or successive
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 . . . .
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
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.
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. Having carefully reviewed ...