United States v. Mowery

FILED
United States Court of Appeals
Tenth Circuit

February 9, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-2140
(D.C. Nos. 1:10-CV-01263-JAR-WPL
MATTHEW MOWERY, and 1:08-CR-02436-JAP-1)
(D.N.M.)
Defendant - Appellant.

ORDER
DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.

Petitioner-Appellant Matthew Mowery, a federal prisoner proceeding pro

se, seeks a certificate of appealability (COA) to appeal the district court’s denial

of his Fed. R. Civ. P. 59(e) motion to alter or amend an earlier judgment

dismissing his 60(b)(4) motion for relief from final judgment. United States v.

Mowery, No. CV 10-1263 JP/WPL (D.N.M. Feb. 2, 2014). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we deny Mr. Mowery’s request for a COA and

dismiss his appeal.

Background

In 2005, Mr. Mowery pled guilty to possession with intent to distribute
methamphetamine. Though initially detained, he was eventually released to his

mother’s home. In 2008, still on release pending sentencing, he was arrested and

charged with another count of possession with intent to distribute

methamphetamine. Mr. Mowery pled guilty and was sentenced to 120 months for

the 2005 conviction and 168 months for the 2008 conviction to run consecutively,

for a total sentence of 288 months.

Mr. Mowery subsequently filed a counseled 28 U.S.C. § 2255 motion to set

aside his sentence for ineffective assistance of counsel based on his lawyer’s

recommendation to reject a plea agreement under which Mr. Mowery’s sentences

would have ran concurrently. The district court denied the motion and we denied

a COA. United States v. Mowery, 512 F. App’x 824 (10th Cir. 2013).

Mr. Mowery next filed a pro se motion for relief from judgment under Fed.

R. Civ. P. 60(b)(4), claiming that: (1) Judge Parker, who dismissed Mr. Mowery’s

§ 2255 motion, had a “conflict of interest” because he was uncomfortable

subpoenaing Judge Conway, who had sentenced Mr. Mowery, Aplt. App. A at 19;

(2) there was a “defect in the integrity of [the] habeas proceedings,” id. at 15; and

(3) the court made assumptions about Judge Conway’s state of mind without

asking Judge Conway how he actually would have ruled, id. at 16. The district

court found the motion “squarely attacks the Court’s ruling on the merits of [Mr.

Mowery’s] original § 2255 motion” and thus amounted to a second or successive

§ 2255 motion, which the court dismissed for lack of jurisdiction. United States

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v. Mowery, No. CV 10-1263 JP/WPL, at *3–4 (D.N.M. Dec. 6, 2013).

On January 6, Mr. Mowery filed a Rule 59(e) motion to amend or alter the

district court’s judgment dismissing his Rule 60(b) motion. 1 R. 5–9. The

district court found Mr. Mowery’s motion, once again, amounted to an attack on

the court’s resolution of his original § 2255 motion on the merits and dismissed

for lack of jurisdiction. United States v. Mowery, No. CV 10-1263 JP/WPL, at

*2–3 (D.N.M. Feb. 4, 2014). Mr. Mowery filed a timely appeal. 1

Discussion

For this court to grant a COA, Mr. Mowery must make a “substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that

“reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). Because the district court’s ruling

1
Notice of the district court’s denial of Mr. Mowery’s Rule 59(e) motion
was initially sent only to his former counsel. Unaware that the district court had
ruled on his motion, Mr. Mowery requested a writ of mandamus from this court
ordering the district court to rule on his motion, which we denied as moot. In re
Mowery, No. 14-2105 (10th Cir. July 3, 2014). By the time Mr. Mowery filed his
notice of appeal, this court dismissed the appeal as untimely. But, this court
remanded with directions to consider whether Mr. Mowery’s motion to reopen the
time to file an appeal should be granted. United States v. Mowery, No. 14-2122
(10th Cir. July 17, 2014). On July 31, 2014, the district court entered an order
reopening the time to appeal, and this appeal followed.

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rested on procedural grounds, Mr. Mowery was required to show that both his

constitutional claims and the district court’s procedural rulings were reasonably

debatable. Id. Because Mr. Mowery has filed pro se, we construe his pleadings

liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991).

Mr. Mowery sought relief under Rule 59(e), as he did under Rule 60(b),

because: (1) “there was a defect in the integrity of the federal habeas

proceedings” resulting in a denial of due process; (2) Judge Parker had a conflict

of interest; and (3) the district court improperly assumed the sentencing judge

would not have accepted an argument for concurrent sentences. Aplt. Br. 3–4.

Rule 59(e) motions, like Rule 60(b) motions, constitute second or successive

habeas petitions where they simply raise claims already rejected as part of earlier

habeas proceedings. United States v. Pedraza, 466 F.3d 932, 933 (10th Cir.

2006). Because success on each of Mr. Mowery’s claims would require a finding

that the habeas court incorrectly ruled on the merits of his earlier ineffective

assistance of counsel claim, the district court properly treated the motion as a

second or successive § 2255 motion. In re Pickard, 681 F.3d 1201, 1206 (10th

Cir. 2012). Thus, the district court had no jurisdiction to entertain Mr. Mowery’s

request. United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).

Therefore, we DENY Mr. Mowery’s request for a COA and DISMISS his

appeal. As the district court has now granted IFP status, we DENY his request as

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moot.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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