Opinion
CV 21-00505 JB/SMV CR 19-00077 JB
08-16-2021
MICHAEL JAMES NISSEN, Movant, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER DENYING MOTION AFFIDAVITS
THIS MATTER comes before the Court on the Affidavit of Due Process of Law Violation for Excluding Movant from Proceedings on Ruling Dismissing 28 U.S.C. § 2255 (CV Doc. 10) and Affidavit of Formal Objection of Memorandum Opinion of Order and Final Judgment (CV Doc. 11) filed by Movant Michael James Nissen. The Court construes Movant Nissen's filings as a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) and denies the motion.
I. Procedural Background
Following a jury trial, Nissen was convicted of two counts of Interstate Communication Containing Threat to Injure the Person of Another in violation 18 U.S.C. §875(c). See Verdict, filed August 7, 2019 (CR Doc. 73). Nissen was sentenced on June 18, 2021. See Minutes of Sentencing Hearing. (CR Doc. 213). Final Judgment has not yet been entered on the conviction and sentence.
On June 1, 2021, Nissen filed the present § 2255 motion, which raises a claim that he is “[b]eing denied due process of law and equal protection clauses of the Constitution.” See § 2255 Motion, CV Doc. 1 at 4; CR Doc. 188 at 4. Nissen seeks to “vacate void judgment for being denied due process of law.” See § 2255 Motion, CV Doc. 1 at 12; CR Doc. 188 at 12. The Court dismissed Nissen's § 2255 motion as premature by Memorandum Opinion and Order entered June 30, 2021. (CV Doc. 8). The Court entered Final Judgment dismissing the § 2255 civil proceeding on that same date. (CV Doc. 9).
On the same day that the Memorandum Opinion and Order and the Final Judgment were entered, Nissen mailed his Affidavit of Due Process of Law Violation for Excluding Movant From Proceedings on Ruling Dismissing 28 U.S.C. § 2255. (CV Doc. 10 at 1, 5). The Affidavit was received the Court on July 6, 2021. (CV Doc. 10 at 2). Nissen mailed a second Affidavit of Formal Objection of Memorandum Opinion of Order and Final Judgment on July 7, 2021. (CV Doc. 11 at 1, 9). The second Affidavit was received by the Court on July 9, 2021. (CV Doc. 11 at 2).
Movant Nissen sent a Request of a Certificate of Appealability to the United States Court of Appeals for the Tenth Circuit. (CV Doc. 12 at 3-9). That Request was transmitted to this Court by the Tenth Circuit as a misdirected notice of appeal. (CV Doc. 12 at 1). The Request was docketed by this Court as a notice of appeal and a preliminary record has been transmitted to the Tenth Circuit. (CV Doc. 12, 13). Nissen also filed a Notice of Appeal, appealing from his conviction and sentence in the criminal case. (CR Doc. 214). The Tenth Circuit has determined that the criminal appeal is premature and has ordered that proceeding held in abeyance until final judgment is entered in the criminal case. (CR Doc. 217).
II. Construction of Nissen's Filings
Nissen filed the Affidavit of Due Process of Law Violation for Excluding Movant from Proceedings on Ruling Dismissing 28 U.S.C. § 2255 (CV Doc. 10) and the Affidavit of Formal Objection of Memorandum Opinion of Order and Final Judgment (CV Doc. 11). There is no provision or requirement in the Federal Rules of Civil or Appellate Procedure for filing of post- judgment affidavits or objections. Therefore, as a threshold matter, the Court must determine how to construe Nissen's Affidavit filings.
A. The Law Governing Post-Judgment Filings:
Federal Rule of Civil Procedure 59 permits a party to file a post-judgment motion to alter or amend a final judgment. Fed.R.Civ.P. 59(e). Rule 59(e) provides:
“A motion to alter or amend a judgment must be filed no later than 28 days after the entry ofjudgment.”Fed. R. Civ. P. 59(e). Grounds warranting reconsideration under Rule 59(e) 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. See Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir.1995). A motion for reconsideration is proper where the court has clearly misapprehended the facts, a party's position, or the controlling law, but is not appropriate to revisit issues already addressed in prior filings. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
A party may also seek relief from a final judgment or order under Fed.R.Civ.P. 60(b). Rule 60(b) provides:
“On motion and just terms, the court may relief a party or the legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic) misrepresentation,, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.”Fed. R. Civ. P. 60(b)(1)-(6). Relief from a judgment or final order is available after the time for seeking alteration of a judgment under Rule 59(e) has expired. See Fed.R.Civ.P. 60(c); Van Skiver v. United States, 952 F.2d at 1243. Generally, a motion for reconsideration filed after the time for submitting a rule 59(e) motion is construed as a motion for relief under Rule 60(b). See Van Skiver v. United States, 952 F.2d at 1243; Weitz v. Lovelace Health System, Inc., 214 F.3d 1175, 1178 (10th Cir. 2000). However, a motion filed within the 28-day time period should, where possible, be construed as a rule 59(e) motion to alter or amend judgment. cf. Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1232-1233 (10 Cir. 2001).
Cir.1993). “If the defendant does not file an appeal, the criminal conviction becomes final upon the expiration of the time in which to take a direct appeal.” United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir.2006). A § 2255 motion filed before the judgment becomes final is premature. United States. v. Cook, 997 F.2d at 1319.
Rule 60(b) is not intended to be a substitute for a direct appeal. Morris v. Adams-Millis Corp., 758 F.2d 1352, 1356-57 (10th Cir.1985). Further, Rule 60(b) is not available to allow a party to reargue an issue previously addressed by the court when the reargument merely advances additional arguments or supporting facts which were available for presentation at the time of the original argument. Van Skiver v. United States, 952 F.2d at 1243 (“revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original is likewise inappropriate.”). Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577-78 (10th Cir. 1996).
Last, as a matter of right, a party may appeal from a final order or judgment. See Fed. R. App. P. 3 and 4. Rule 3 of the Rules of Appellate Procedure states:
“An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4 . . . The notice of appeal must:
(A) specify the party or parties taking the appeal . . .
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.”Fed. R. App. P. 3(a)(1) and (c)(1).
B. The Court Construes Nissen's Affidavits as a Rule 59(e) Motion:
Nissen's Affidavits challenge the Court's June 30, 3031 Memorandum Opinion and Order and Judgment on the grounds that the Court denied Nissen of due process in dismissing his § 2255 motion. (CV Doc. 10 at 2-3; CV Doc. 11 at 9). Neither of the Affidavits expresses any intent to appeal or identifies the name of any court to which an appeal is taken. The Affidavits do not comply with the requirements of Fed. R. App. P. 3(c)(1) and the Court declines to construe the filings as a notice of appeal. Further, because the Court has docketed Nissen's misdirected notice of appeal (CV Doc. 12) and has transmitted the preliminary record on appeal, it is unnecessary for the Court to treat the Affidavits as a notice of appeal.
The Affidavits were both filed within 28 days after entry of the Final Judgment. As such, both Affidavits are timely for purposes of Fed.R.Civ.P. 59(e). The Affidavits also raise matters that could come within the scope of Fed.R.Civ.P. 60(b). However, because the Affidavits are timely under rule 59(e), the remedy under rule 59(e) is sufficient for determination of the issues raised in Nissen's filings, and the analysis under rule 60(b) would be duplicative of rule 59(e), the Affidavits are more properly treated as a motion under rule 59(e) rather than a rule (60) motion. Van Skiver v. United States, 952 F.2d at 1243. Therefore, the Court will construe Nissen's Affidavits as a motion to alter or amend the judgment made pursuant to rule 59(e).
III. Analysis of Nissen's Rule 59(e) Motion
Movant Nissen's Affidavits challenge the Court's June 30, 2021 dismissal of his 28 U.S.C. § 2255 motion as premature. Nissen's Affidavit of Due Process of Law Violations states:
“This Matter, Affidavit of Due Process of Law violation for excluding movant from proceeding on an adjudicative hearing and declaratory order dismissing 28 U.S.C. § 2255 is just
another violation of this court for not including movant to appear pro se in personam to object, refute or provide evidence of substantial value of law beyond reasonable doubt to that of the United States of America respondents.”(CV Doc. 10 at 2-3). His Affidavit of Formal Objection contends:
“This Matter, Affidavit of Formal Objection of Memorandum Opinion of Order and Final Judgment (Doc. 8, 9) us a cabalistic hodgepodge of gobleycocked linguistic fictional legal gibberish construed by a corporational administrative agency martial law court that continues to deny the Movant in case no. 1:21-cv-00505-JB-SMV, also known as the defendant in case no. 1:19-cr-00077-JB constitutional due process and equal protection of law guaranteed by the Constitution.”(CV Doc. 11 at 2-3). Nissen's Affidavits raise arguments he has made in his criminal case, express views consistent with sovereign citizen ideology, and challenge both the dismissal of his § 2255 Motion and the conviction and sentence in his criminal case. (CV Doc. 10, 11; CR Doc. 204, 206, 207, 208).
A. The Law Regarding Section 2255 Proceedings:
Title 28, section 2255 provides, in relevant part, as follows:
“A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.”28 U.S.C. § 2255(a). In general, the one-year time period for filing a § 2255 motion runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).
“Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). If an appeal is filed, the district court is precluded “from considering a § 2255 motion while review of the direct appeal is still pending, ” absent the existence of extraordinary circumstances. United States. v. Cook, 997 F.2d 1312, 1319 (10
A § 2255 motion proceeds under the Rules Governing Section 2255 Proceedings for the United States District Courts. Rule 4 of the Rules Governing Section 2255 Proceedings imposes an obligation on the Court to conduct a preliminary review of each § 2255 motion. Rule 4 provides:
“The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or take other action the judge may order.”Rule 4(b) of the Rules Governing Section 2255 Proceedings.
B. The Court Will Deny Nissen's Rule 59(e) Motion:
The Court dismissed Nissen's § 2255 Motion because final judgment has not yet been entered on his criminal conviction and sentence and, therefore, his Motion is premature. (CV Doc. 8). The Court dismissed the case pursuant to the provisions of rule 4(b) of the Rules Governing Section 2255 Proceedings. Because Nissen was clearly not entitled to relief, the United States was not ordered to answer Nissen's § 2255 Motion, no adjudicative hearing was held, and the case was mandatorily dismissed. See Rule 4(b) of the Rules Governing Section 2255 Proceedings. Nissen is not yet eligible for § 2255 relief and he is not entitled to any further process under the habeas corpus statutes or the Rules Governing Section 2255 Proceedings.
Nissen does not present any intervening change in the controlling law, new evidence previously unavailable, or the need to correct clear error or prevent manifest injustice in support of his rule 59(e) motion. Brumark Corp. v. Samson Resources Corp., 57 F.3d at 948. Instead, he simply disagrees that his § 2255 Motion is premature. (CV Doc. 11 at 4-5). However, his due process and equal protection challenges to his criminal conviction and sentence should be raised and decided in a direct appeal from the final judgment in his criminal case. As the Court has already advised, his § 2255 motion is precluded and premature until the direct appeal has been resolved. United States. v. Cook, 997 F.2d 1312, 1319 (10th Cir.1993). Nissen's Affidavits do not present any new issue the Court did not consider in its July 30, 2021 Memorandum Opinion and Order. See Van Skiver v. United States, 952 F.2d at 1243; Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Therefore, the Court will deny Nissen's rule 59(e) request to alter or amend the Final Judgment.
Nissen also contends that he must be issued a Certificate of Appealability. (CV Doc. 10 at 5-6). However, the Court denied Nissen a Certificate of Appealability under rule 11 of the Rules Governing Section 2255 Proceedings at the time it dismissed the case (CV Doc. 8 at 2-3) and Nissen presents no basis for the Court to reconsider that denial.
IT IS ORDERED that the Affidavit of Due Process of Law Violation for Excluding Movant from Proceedings on Ruling Dismissing 28 U.S.C. § 2255 (CV Doc. 10) and Affidavit of Formal Objection of Memorandum Opinion of Order and Final Judgment CV (Doc. 11) filed by Movant Michael James Nissen, which the Court construes as a Fed.R.Civ.P. 59(e) motion, are DENIED. The Clerk of the Court is DIRECTED to transmit a copy of this Memorandum Opinion and Order to the United States Court of Appeals for the Tenth Circuit as a supplemental record.