Carter v. Bigelow

MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO STRIKE AND DENYING MOTION TO AMEND AND RENEWED MOTION TO STAY

TED STEWART, District Judge.

This matter is before the Court on two Motions to Strike, one filed by the Victim’s Representative and one filed by Respondent. Both Motions seek to strike Petitioner’s recently filed Motion to Amend and Renewed Motion to Stay. The Court will grant both Motions to Strike and will deny Petitioner’s Motion to Amend and Renewed Motion to Stay for the reasons set forth below.

I. BACKGROUND

On September 8, 2011, Respondent filed a Motion to Dismiss for Lack of Prosecution. The Victim’s Representative similarly sought dismissal to protect the rights established in the Crime Victims’ Rights Act. The Court denied the requests to dismiss this action.

The Victim’s Representative sought a writ of mandamus from the Tenth Circuit Court of Appeals pursuant to 18 U.S.C. § 3771(d)(3). Specifically, the Victim’s Representative sought

a writ of mandamus directing the district court to (1) reconsider, in light of his CVRA rights, within two weeks its denial of the State’s motion to dismiss Carter’s remaining § 2254 claims; (2) afford Mr. Olesen his rights under § 3771(a)(3), (4), (7), and (8) in all future proceedings; and (3) avoid all further unwarranted delay and to report to this court within two weeks with a scheduling order to resolve the remaining issues in the habeas case by the end of 2011, if reconsideration of the motion to dismiss does not result in dismissal.¹

Petitioner opposed the Victim’s Representative’s request for a writ of mandamus. During the briefing before the Tenth Circuit, Petitioner informed that court that he intended to file with this Court “a motion to amend his petition and a renewed motion to stay based upon the Brady and Napue violations” at issue in his previous motion to stay.² Importantly, this Court has previously held that Petitioner’s new Brady and Napue claims are not included in the Petition currently before the Court.³

On November 4, 2011, 447 Fed.Appx. 868 (10th Cir.2011), the Tenth Circuit denied the Victim’s Representative’s request for mandamus, though that court agreed “that the more than nine-and-a-half-year delay [in this case] is too long.”⁴ Despite this, the court found that it could not conclude that the Victim’s Representative was entitled to dismissal of this action. The court stated that “[a] part of our consideration is the likelihood that under the present briefing schedule this habeas action will soon be concluded by a final ruling by the district court.”⁵ The Tenth Circuit concluded by “encouraging] the district court to hold firm to the briefing schedule and to decide the case promptly after briefing is completed.”⁶

In a footnote, the Tenth Circuit addressed Petitioner’s statements concerning his plan to seek amendment of his petition based on the Brady and Napue violations. The court stated: “To the extent Mr. Carter seeks to assert in the district court any new claims not already asserted in the habeas petition, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas petition.”⁷

On November 10, 2011, Petitioner filed a Motion to Amend and a Renewed Motion to Stay.⁸ Petitioner seeks to amend and supplement his current petition to add and supplement claims based on the alleged Brady and Napue violations. Petitioner also renews his request to stay this matter while he exhausts these claims in state court.

The Victim’s Representative and Respondent have both filed Motions seeking to strike these two Motions. Both the Victim’s Representative and Respondent argue that, by filing this Motion to Amend and Renewed Motion to Stay, Petitioner has acted contrary to the directive of the Tenth Circuit that any new claims must be pursued under the procedures set forth in 28 U.S.C. § 2244. In addition, the Victim’s Representative argues that Petitioner has violated his rights to proceedings free from unreasonable delay and his right to be treated with fairness.⁹

II. DISCUSSION

Two important principles are at issue in the determination of the Motions to Strike. First, “federal district courts have the inherent power to manage their business ‘so as to achieve the orderly and expeditious disposition of cases.’”¹⁰ Second, a lower court is not at liberty to act contrary to what is dictated by a higher court.¹¹ With these basic principles in mind, the Court turns to the Motions to Strike.

As set forth above, this Court previously found that Petitioner’s newly alleged Brady and Napue claims are not included in his current petition. During the briefing of the writ of mandamus, Petitioner repeatedly informed the Tenth Circuit that it would seek to amend his Petition in this Court to add these claims. In apparent response to these statements from Petitioner, the Tenth Circuit specifically directed that “[t]o the extent Mr. Carter seeks to assert in the district court any new claims not already asserted in the habeas petition, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas petition.”¹² The Court finds that, by filing the Motion to Amend, Petitioner has acted in a way that is clearly contradictory to the plain language of the Tenth Circuit. If Petitioner seeks to add new claims, the Tenth Circuit has specifically dictated that he must follow the procedures in § 2244 for filing a second or successive petition.

Petitioner makes a variety of arguments in opposition to the Motions to Strike. First, Petitioner argues that the Motions are not appropriate under Fed.R.Civ.P. 12(f). Both Respondent and the Victim’s Representative cite to Rule 12(f) as a basis to strike the Motion to Amend and Renewed Motion to Stay. Rule 12(f) provides that a “court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 7 defines pleadings to include a complaint, an answer, and similar documents, but does not include motions. As the documents at issue are not “pleadings” under the Federal Rules of Civil Procedure, Petitioner argues that Rule 12(f) is an improper vehicle to strike the Motions.¹³ This argument, however, ignores the Court’s inherent authority to manage its own docket to allow for the disposition of cases. Therefore, the Court must reject Petitioner’s argument.

Petitioner next argues that the Motions to Strike are premature as he has filed a Petition for Panel Rehearing in which he seeks to have the language at issue stricken from the Tenth Circuit’s decision.¹⁴ The Court disagrees. The Tenth Circuit encouraged this Court to “hold firm to the briefing schedule and to decide the case promptly after briefing is completed.”¹⁵ By granting the Motions to. Strike, the Court can more effectively focus on those issues that remain before the Court. If Petitioner is ultimately successful in his Petition for Panel Rehearing, Petitioner may take any action he deems necessary at the appropriate time.

Petitioner also argues that the language at issue in the Tenth Circuit’s decision is dicta and does not control this Court’s actions. Again the Court must disagree with Petitioner’s assessment. The Tenth Circuit was well aware of the procedural history of this case and of Petitioner’s plans to raise his new Brady and Napue claims in this Court. It appears that the Tenth Circuit’s statements concerning new claims were directed at precisely the situation before the Court. As was aptly stated by the Victim’s Representative, “[t]he Tenth Circuit said what it meant and meant what it said.”¹⁶ The Court and Petitioner are not at liberty to ignore the clear statement by the Tenth Circuit that, if Petitioner seeks to add new claims, he must follow the procedures set out in 28 U.S.C. § 2244.

This brings the Court to Petitioner’s next argument, which is that the language in the Tenth Circuit decision does not apply to his Brady and Napue claims. Petitioner argues that the Tenth Circuit’s restriction is only related to claims not already asserted and that his new claims are related to claims already in his Petition. This argument, however, ignores this Court’s previous ruling that Petitioner’s new claims are not included in his Petition. Therefore this argument fails.

Petitioner’s next argument is that the Tenth Circuit’s decision is at odds with Supreme Court precedent. This argument is better addressed to the Tenth Circuit, which Petitioner has done in his Petition for Panel Rehearing. Therefore, the Court need not address it.

Petitioner’s final argument is that the Victim’s Representative’s rights under the CVRA do not trump Petitioner’s due process rights. Petitioner is correct that he has a due process right to have his case decided. However, under the CVRA, the Victim’s Representative is afforded certain rights, namely the right not to be excluded from court proceedings, the right to be heard, the right to proceedings free from unreasonable delay, and the right to be treated with fairness and respect.¹⁷ Additionally, the Respondent has an interest in the finality of Petitioner’s state court conviction. It is the Court’s responsibility to consider and balance these rights. In this instance, where the Tenth Circuit has provided specific guidance on how Petitioner should proceed with claims that are not included in his Petition and Petitioner has ignored that guidance, the Court finds that striking the Motion to Amend and Renewed Motion to Stay is an appropriate measure.

In addition to the above, the Victim’s Representatives argues that Petitioner’s proposed amendment should be denied because it will unduly prolong and complicate this case and will violate the Victim’s Representative’s right to proceedings free from unreasonable delay and his right to be treated with fairness.

Fed.R.Civ.P. 15(a) provides that “a party may amend its pleadings only with the opposing party’s written consent or the court’s leave.” “Congress enacted [the Antiterrorism and Effective Death Penalty Act (“AEDPA”) ] to advance the finality of criminal convictions.”¹⁸ In considering a request to amend a habeas petition under Rule 15(a), a court should consider the aims of AEDPA.¹⁹ Under Rule 15 and AEDPA, the Court has “the right to disapprove proposed amendments that would unduly prolong or complicate the case.”²⁰

Allowing Petitioner to amend his Petition to add new, unexhausted claims would frustrate the purpose of AEDPA, unduly prolong this already delayed case, further complicate an already complicated matter, and run afoul of the Tenth Circuit’s recent decision. This is especially true, where as here, Petitioner’s Motion to Amend seeks much more than simply permission to amend claims. In his Motion, Petitioner not only seeks amendment but also requests the Court revisit a number of its prior rulings, grant him leave to conduct further discovery, grant him the authority to further amend or supplement his Petition, and conduct an evidentiary hearing. Petitioner essentially seeks to undue much of what has already occurred in this matter and his request, if granted, would put this case well into its second decade of litigation. The Tenth Circuit held that the “nine-and-a-half-year delay [in this case] is too long.”²¹ That court encouraged this Court to hold to the briefing schedule established “and to decide the case promptly after briefing is completed.”²²

Based upon all of these considerations, the Court finds that amendment is not proper in this matter and will not be permitted. The Court further finds that disallowing amendment is necessary to protect the Victim’s Representative’s statutory right to a proceeding free from unreasonable delay and his right to be treated with fairness. Therefore, the Court will deny Petitioner’s Motion to Amend. As Petitioner’s Renewed Motion to Stay is premised on his Motion to Amend, it too will be denied.

III. CONCLUSION

It is therefore

ORDERED that the Motions to Strike filed by the Victim’s Representative and Respondent (Docket Nos. 452 and 456) are GRANTED. It is further

ORDERED that Petitioner’s Motion to Amend and Renewed Motion to Stay (Docket Nos. 446 and 448) are DENIED AND STRICKEN.

MEMORANDUM DECISION AND ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION

This matter is before the Court on Petitioner’s Motion for Reconsideration. Petitioner seeks reconsideration of this Court’s order denying and striking Petitioner’s Motion to Amend and Renewed Motion to Stay. Petitioner argues that the Court’s previous order should be reconsidered because the Court did not allow him to file reply briefs to these motions, but rather ruled, on an expedited basis, on motions to strike filed by Respondent and the Victim’s Representative. Petitioner argues that, had the Court waited, he would have presented additional argument on his motions. The Court finds that Petitioner has provided nothing showing that reconsideration is either appropriate or necessary. Therefore, the Motion will be denied.

I. BACKGROUND

The following facts are relevant to this Motion. On June 27, 2011, 2011 WL 2551325, the Court established a briefing schedule to resolve the merits of the remaining claims in Petitioner’s Amended Petition. Shortly before Petitioner’s merits brief was due, he filed a Motion to Stay.¹ Petitioner sought to stay this matter while he returned to state court to exhaust new Brady and Napue claims. Respondent and the Victim’s Representative both opposed the Motion to Stay.²

On September 8, 2011, Respondent filed a Motion to Dismiss for Lack of Prosecution.³ The Victim’s Representative similarly sought dismissal to protect the rights established in the Crime Victims’ Rights Act.⁴ The Court denied the requests to dismiss this action⁵ and, on the same day, denied Petitioner’s Motion to Stay without prejudice.⁶

The Victim’s Representative sought a writ of mandamus from the Tenth Circuit Court of Appeals pursuant to 18 U.S.C. § 3771(d)(3). Petitioner opposed the Victim’s Representative’s request for a writ of mandamus. During the briefing before the Tenth Circuit, Petitioner informed that court that he intended to file with this Court “a motion to amend his petition and a renewed motion to stay based upon the Brady and Napue violations” at issue in his previous motion to stay.⁷

On November 4, 2011, the Tenth Circuit denied the Victim’s Representative’s request for mandamus, though that court agreed “that the more than nine-and-a-half-year delay [in this case] is too long.”⁸ Despite this, the Tenth Circuit found that it could not conclude that the Victim’s Representative was entitled to dismissal of this action. The court stated that “[a] part of our consideration is the likelihood that under the present briefing schedule this habeas action will soon be concluded by a final ruling by the district court.”⁹ The Tenth Circuit concluded by “encouragfing] the district court to hold firm to the briefing schedule and to decide the case promptly after briefing is completed.”¹⁰

In a footnote, the Tenth Circuit stated: “To the extent Mr. Carter seeks to assert in the district court any new claims not already asserted in the habeas petition, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas petition.”¹¹ Petitioner sought panel rehearing asking the Tenth Circuit to remove this footnote. Petitioner argued that this footnote was “a misstatement of law that the lower district court may feel obligated to follow.”¹² The Tenth Circuit denied Petitioner’s petition for panel rehearing.¹³

On November 10, 2011, Petitioner filed a Motion to Amend and a Renewed Motion to Stay.¹⁴ Petitioner sought to amend his current petition to add claims based on the alleged Brady and Napue violations. Petitioner also renewed his request to stay this matter while he exhausts these claims in state court.

The Victim’s Representative and Respondent sought to strike these two Motions.¹⁵ The Court granted Motions filed by the Victim’s Representative and Respondent to expedite consideration of the Motions to Strike,¹⁶ but did not alter the briefing schedule for Petitioner’s two Motions.

On December 6, 2011, the Court granted the Motions to Strike. The Court did so by relying on its inherent power to manage its docket, as well as the footnote in the Tenth Circuit’s decision. The Court found that Petitioner sought to add new claims and that, under the clear directive of the Tenth Circuit, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas petition to do so. By filing the Motion to Amend and Renewed Motion to Stay, the Court found Petitioner to be in violation of the Tenth Circuit’s directive. Therefore, the Court granted the Motions to Strike. The Court further found that allowing amendment would frustrate the purposes of AEDPA and denied the Motion to Amend on the merits. Petitioner now seeks reconsideration of the Court’s previous order.

II. DISCUSSION

“[T]he Federal Rules of Civil Procedure do not recognize that creature known all too well as the ‘motion to reconsider’ or ‘motion for consideration.’ Of course, a district court always has the inherent power to reconsider its interlocutory rulings.”¹⁷ “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”¹⁸ “[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.”¹⁹

The Court finds that Petitioner has not presented any grounds warranting reconsideration. Rather, Petitioner is merely revisiting issues that this Court and the Tenth Circuit have already rejected.

Petitioner first argues that the Court should have permitted him to file a reply brief to his Motion to Amend and Renewed Motion to Stay. The Court will concede that the better practice would have been to expedite briefing on all motions, rather than just the Motions to Strike. However, the Court cannot find that Petitioner has suffered any prejudice. All of these issues were fully briefed in the Motion to Amend, Renewed Motion to Stay, and Motions to Strike. Further, Petitioner has received another full round of briefing on these same issues with the filing of the instant Motion. In short, all parties have been given a full opportunity to address the issues in the various motions. Therefore, the Court finds that the failure to allow reply briefs does not provide a sufficient basis for reconsideration.

Petitioner’s Motion for Reconsideration is further premised on the idea that the Court’s decision is inconsistent with the Tenth Circuit’s decision in Douglas v. Workman.²⁰ As an initial matter, the Court notes that Petitioner made the same argument to the Tenth Circuit when seeking panel rehearing. The fact that panel rehearing was not granted and the footnote remained is of significance. Further, a reading of Douglas reveals that it is not controlling here.

In Douglas, the Tenth Circuit faced an “unusual case” where “Douglas’s Brady claim should be treated, not as a second or successive request for habeas relief, but instead as a supplement to his initial habeas petition.”²¹ The court based its decision on seven factors, including that: (1) Douglas’s initial habeas petition was still open and pending; (2) Douglas’s pending prosecutorial misconduct claim was closely related to his Brady allegations; (3) the prosecutor misconduct involved wilful and intentional violations; (4) the prosecutor actively concealed his violation; (5) Douglas’s case was a death penalty case; (6) there was inequity in treatment between Douglas and a co-defendant; and (7) the relief was not inconsistent with AEDPA purposes.²² While the Tenth Circuit noted that a habeas petitioner need not establish all of these factors, “they serve to narrow significantly the circumstances that would justify permitting a habeas petitioner to supplement his first habeas petition in the same manner.”²³

In this case, Petitioner can only point to the fact that his Petition is still open and pending and that he is under a sentence of death. The other factors found to be relevant in Douglas are not found in this case. Therefore, the unusual circumstances at issue in Douglas are not present and consideration of Douglas does not mandate a different result.

The Victim’s Representative asks this Court to not only deny the Motion for Reconsideration, but also warn Petitioner of possible future sanctions. The Victim’s Representative argues that Petitioner’s “conduct over the course of the entire proceeding is more than sufficient for this Court to at least warn Carter that any future conduct in attempt to delay the proceedings including any direct or indirect assertion of an amendment to his pleadings may result in significant sanctions by this Court.”²⁴

As set forth above, the Tenth Circuit encouraged this Court to hold firm to the briefing schedule and to decide the case promptly after briefing is completed. The Court intends to do so. Any attempt by any party to unduly delay the prompt disposition of the remaining claims may result in sanctions.

Though no further clarification seems necessary, the Court wishes to make its decision clear. If Petitioner seeks to assert his new Brady and Napue claims, he must follow the procedures set forth in 28 U.S.C. § 2244 for filing a second or successive § 2254 habeas petition.

III. CONCLUSION

It is therefore

ORDERED that Petitioner’s Motion for Reconsideration (Docket No. 478) is DENIED.

1 . Docket No. 445, at 1-2.

2 . Docket No. 457, Ex. 1, at 11-12; see also id. at 17-19 & n. 6.

3 . Docket No. 437, at 4-5.

4 . Docket No. 445, at 6.

5 . Id. at 7.

6 . Id. at 8.

7 . Id. at 8 n. 4.

8 . Docket Nos. 446 & 448.

9 . See 18 U.S.C. § 3771(a)(7), (8).

10 . LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir.2003) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)).

11 . Ute Indian Tribe v. State of Utah, 935 F.Supp. 1473, 1516-18 (D.Utah 1996).

12 . Docket No. 445, at 8 n. 4.

13 . Docket No. 463, at 3.

14 . See Docket No. 457, Ex. 2.

15 . Docket No. 445, at 8.

16 . Docket No. 471, at 5.

17 . 18 U.S.C. § 3771(a)(3), (4), (7), & (8).

18 . Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).

19 . See Ellzey v. United States, 324 F.3d 521, 526 (7th Cir.2003) (noting that AEDPA is designed to expedite the resolution of collateral attacks and this concern "should influence the exercise of discretion under Rule 15(a)”).

20 . Id.

21 . Docket No. 445, at 6.

22 . Id. at 8.

1 . Docket No. 414.

2 . Docket Nos. 417 & 418.

3 . Docket No. 420.

4 . Docket No. 422.

5 . Docket No. 436.

6 . Docket No. 437.

7 . Docket No. 457, Ex. 1, at 11-12; see also id. at 17-19 & n. 6.

8 . Docket No. 445, at 6.

9 . Id. at 7.

10 . Id. at 8.

11 . Id. at 8 n. 4.

12 . Docket No. 488, Ex. 1.

13 . Id., Ex. 2.

14 . Docket Nos. 446 & 448.

15 . Docket Nos. 452 & 456.

16 . Docket Nos. 460 & 461.

17 . Warren v. Am. Bankers Ins. of Fla., 507 F.3d 1239, 1243 (10th Cir.2007).

18 . Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000).

19 . Id. (citation omitted)

20 . 560 F.3d 1156 (10th Cir.2009).

21 . Id. at 1189.

22 . Id. at 1190-96.

23 . Id. at 1190 n. 20.

24 . Docket No. 483, at 5.