United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE
order entered November 28, 2016, the court dismissed
petitioner's motion for a writ of habeas corpus under 28
U.S.C. § 2254 and denied a certificate of appealability.
(ECF Nos. 13 and 14). Petitioner now seeks a certificate of
appealability (ECF No. 16), leave to file an appeal in forma
pauperis (ECF No. 17), and an order staying the action and an
order for respondent to show cause (ECF No. 18).
action has been fully litigated on its merits, and this court
has issued a judgment explicitly finding that petitioner did
not make a substantial showing of the deprivation of a
constitutional right. (ECF Nos. 13 and 14). A certificate of
appealability should issue only if the applicant has
“made a substantial showing of the denial of a
constitutional right, ” 28 U.S.C. § 2253(c)(2),
which the Supreme Court has interpreted to mean that the
“petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
motion for a certificate of appealability will be treated as
a motion for reconsideration of the court's earlier order
denying habeas corpus relief and a certificate of
appealability. “Motions for reconsideration serve a
limited function: to correct manifest errors of law or fact
or to present newly discovered evidence.” Hagerman
v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988).
The motion “cannot be used to introduce new evidence,
tender new legal theories, or raise arguments which could
have been offered or raised prior to entry of
judgment.” Innovative Home Health Care v. P.T.-O.T.
Associates, 141 F.3d 1284, 1286 (8th Cir.1998)
(citations omitted). “A district court has broad
discretion in determining whether to grant a motion to alter
or amend judgment.” Hagerman, 839 F.2d at 413.
A motion to alter or amend the judgment must be filed no
later than 28 days after judgment has been entered.
motion was not timely filed, though the prison mailbox rule
might apply to this motion. See Grady v. United
States, 269 F.3d 913, 916 (8th Cir. 2001); Fed. R. App.
P. 4(c). Even if it were timely, petitioner argues in his
motion that he was wrongfully charged with the general crime
of assault rather than the specific crime of domestic
violence, which he alleges would affect the enhancements
applicable to his sentence under Missouri law. (ECF No. 16)
(citing State v. Dowdy, 774 S.W.2d 504, 510
(Mo.Ct.App. 1989); Mo. Rev. Stat. §§ 565.050,
565.060, 565.072, 565.073). These arguments were not raised
in his petition, and a motion to reconsider is not an
opportunity to reargue the case and may not be used to argue
a new legal theory. Petitioner's arguments are not the
product of new evidence, nor do they appear to reveal
manifest errors of law or fact.
careful review of the record and petitioner's motion for
a certificate of appealability, the undersigned does not
believe that reasonable jurists would find the court's
assessment of the grounds presented in this case debatable or
wrong. See id.
IT IS HEREBY ORDERED that the pro se motion of petitioner for
a certificate of appealability (ECF No. 16) is denied.
because his appeal appears to be taken in good faith, IT IS
FURTHER ORDERED that the motion of petitioner for leave to
continue to proceed in forma pauperis (ECF No. 17) is
sustained. Fed. R. App. P. 24(a) (3).
petitioner does not appear to have any pending state cases,
IT IS FURTHER ORDERED that his motion to stay and to order
respondent to show cause (ECF No. 18) is denied as moot.
Clerk of this Court is directed to transmit a copy of this
order to the United States Court of ...