United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ United State District Judge
MATTER is before the Court on Petitioner Arturo Anaya's
“Motion to U.S. District Judge on Joint Negligence,
” filed on November 16, 2017. [Doc. 33]. Respondents
filed a response on November 17, 2017. [Doc. 34]. Anaya did
not file a reply. Having considered the briefing, the
relevant portions of the record, and the law, the Court finds
that the motion is not well-taken and will be DENIED.
proceeding pro se, filed a petition pursuant to 28 U.S.C.
§ 2254 on April 22, 2016. [Doc. 1]. In his petition and
in a number of additional supporting documents, he raised
several grounds for relief pertaining to his conviction in
state court. He also filed two motions for a new trial.
[Docs. 23, 25]. In his Proposed Findings and Recommended
Disposition (“PF&RD”), filed on October 6,
2017, the Honorable Stephan M. Vidmar, United States
Magistrate Judge, found that Anaya had asserted a mix of
exhausted and unexhausted claims. [Doc. 28]. Having so found,
Judge Vidmar weighed the alternatives for addressing mixed
petitions, as set out by the Tenth Circuit-i.e., (1) dismiss
the mixed petition in its entirety; (2) stay the petition
while the petitioner exhausts the unexhausted claims; (3)
permit the petitioner to dismiss the unexhausted claims and
proceed with the exhausted claims; or (4) ignore the
exhaustion requirement and deny the petition on the merits,
if none of the claims has any merit. Id. at 8-9
(citing Fairchild v. Workman, 579 F.3d 1134, 1156
(10th Cir. 2009)). He recommended that Anaya be given the
opportunity to withdraw his as-yet unexhausted claims to
allow a decision on the merits as to the exhausted claims.
Id. at 9-10. The PF&RD recommended that Anaya be
given 30 days from entry of an order by the undersigned
adopting the findings and recommendation to file a one-page
document indicating whether he wished to withdraw his
unexhausted claims. Id.
objected to the PF&RD on October 19, 2017. [Doc. 29]. In
his objections, he asserted that the PF&RD failed to
address his claim that the “newly discovered
evidence” he disclosed-i.e., the allegedly falsified
testimony of two witnesses-should “exonerate [him] from
all conviction.” Id. at 1. He argued that the
PF&RD ignored the law he cited on intervening cause.
Id. He suggested that Judge Vidmar's finding
that his petition contained a mix of exhausted and
unexhausted claims was “irrelevant” in light of
the “newly discovered evidence.” Id.
Along with his objections, Anaya submitted a document
indicating his election not to withdraw his unexhausted
claims. Id. at 3.
November 6, 2017, the Honorable Robert A. Junell, Senior
United States District Judge, issued an order overruling the
objections, adopting the PF&RD, denying the petition and
both motions for a new trial, and dismissing the case without
prejudice. [Doc. 30]. On de novo review, Judge Junell found
that Anaya's objections to the PF&RD were meritless.
Id. at 10-11. He found that Judge Vidmar had not
ignored Anaya's claims regarding the allegedly falsified
testimony. Id. at 11. Rather, he found that Anaya
had not exhausted them in state court, and it was therefore
inappropriate to consider the claims on the merits.
Id. Anaya's allegation that the claims involved
“newly discovered evidence” did not allay the
exhaustion requirement. Id. (citing cases). Judge
Junell therefore adopted the finding in the PF&RD that
Anaya had alleged a mix of exhausted and unexhausted claims
and the recommendation that he be given the opportunity to
withdraw the unexhausted claims. Id. at 12. He
further found that Anaya had indicated, via a single-page
document included with his objections to the PF&RD, his
desire not to withdraw his unexhausted claims. Id.
(citing [Doc. 29] at 3). Therefore, because Anaya had elected
not to withdraw his unexhausted claims, his petition was
dismissed in its entirety without prejudice for failure to
exhaust. Id. Judge Junell likewise denied
Anaya's two motions requesting a new trial. [Docs. 23,
25]. He denied a certificate of appealability [Doc. 31] and
entered final judgment [Doc. 32].
subsequently filed the instant “Motion to the U.S.
District Judge on Joint Negligence, ” which has been
docketed as a motion to reconsider. [Doc. 33]. In it, he
describes the theory of “joint
negligence.” Id. at 1. He asserts that the
“joint negligence” theory provides “more
supporting evidence for a new trial [he] requested.”
Id. He maintains that the Court said it “would
not recommend rulings on [Anaya's motions for a new
trial] at this time.” Id. In response,
Respondents simply ask the Court to deny the motion. [Doc.
filed the instant motion ten days after final judgment was
entered against him. Therefore, the Court will construe it as
a motion for relief from judgment pursuant to Fed.R.Civ.P.
59(e). Rule 59(e) provides that a district court
may alter or amend a judgment on a motion filed within 28
days of entry of the judgment. The court may reconsider a
final decision if the moving party shows “(1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, [or] (3) the need to correct clear
error or prevent manifest injustice.” Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). The court “is vested with considerable
discretion” in determining whether to grant or deny
such a motion. Brown v. Presbyterian Healthcare
Servs., 101 F.3d 1324, 1332 (10th Cir. 1996). A Rule
59(e) motion is not intended to “allow a losing party
to rehash arguments previously addressed or to present new
legal theories or facts that could have been raised
earlier.” ACE USA v. Union Pac. R.R. Co., 2011
WL 6097138, at *1 (D. Kan. Dec. 7, 2011) (unpublished).
“A party's failure to present its strongest case in
the first instance does not entitle it to a second chance in
the form of a motion to reconsider.” Id.
a motion to alter or amend is an “extraordinary
remedy” to be used “sparingly, ” in
recognition of the interests in finality and the conservation
of judicial resources. Torre v. Federated Mut. Ins.
Co., 906 F.Supp. 616, 619 (D. Colo. 1995); cf.
Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
(10th Cir. 2006) (discussing related standard under Rule
60(b)); Davis v. Kan. Dep't of Corr., 507 F.3d
1246, 1248 (10th Cir. 2007) (“Relief under Rule 60(b)
is extraordinary and may only be granted in exceptional
circumstances.” (internal quotations omitted)).
instant motion, Anaya refers to “joint
negligence” and suggests that this principle provides
“more supporting evidence” for the motions for a
new trial that he filed, which he asserts the Court
previously said it “would not recommend rulings
on.” [Doc. 33] at 1. As an initial matter, Anaya is
mistaken in his apparent belief that the Court has not
already disposed of the motions for a new trial. It is true
that, in the PF&RD, Judge Vidmar noted that he would not
recommend rulings on the two motions at that time. [Doc. 28]
at 1 n.2. However, Judge Junell subsequently ruled on the
motions in his order adopting the PF&RD. [Doc. 30] at 12
n.6, 13. He denied the motions, having found that Anaya's
petition warranted dismissal without prejudice for failure to
to the extent that Anaya believes his new “supporting
evidence” warrants reconsideration of the order
dismissing his petition, he is mistaken. Anaya appears to be
asserting an argument related to his self-defense claims. But
his petition was denied and his case dismissed without
prejudice for failure to exhaust, precluding any merits-based
determination of his claims. Even liberally construed, his
motion lacks any sound basis in the controlling facts or law
of the case. Anaya does not show that he is entitled to the
“extraordinary remedy” of post-judgment relief-he
does not show a change in law, previously unavailable
evidence, or any other error that would persuade the Court
that it erred in denying his petition. His claims and motions
for a new trial were properly denied, and his case was
properly dismissed without prejudice for failure to exhaust.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Petitioner Arturo Anaya's “Motion to U.S. District
Judge on Joint Negligence” [Doc. 33] is