United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
HEAD SENIOR U.S. DISTRICT JUDGE.
Martin Malta filed a motion under Rule 59(e) in which he
requests reconsideration of the Court's dismissal of his
Rule 60 motion. D.E. 60. For the same reasons set out in this
Court's previous Order dated April 24, 2017, the Court
dismisses Malta's present motion for lack of
jurisdiction. Malta is also denied a certificate of
complains in his current motion that this Court erred
substantively when the Court determined that Malta's
showing did not qualify for relief. The history of these
proceedings is set out in this Court's previous Order
dated April 24, 2017.
SECOND OR SUCCESSIVE MOTION
Federal Rule of Civil Procedure 59(e)
Federal Rules of Civil Procedure are applicable to federal
habeas practice “only to the extent that they are not
inconsistent with any statutory provisions or these
rules.” Rule 12, Rules Governing Section 2255
Proceedings for the United States District Courts (2017). To
prevail on a Rule 59(e) motion, the movant must show at least
one of the following: 1) an intervening change in controlling
law; 2) new evidence not previously available; 3) the need to
correct a clear or manifest error of law or fact or to
prevent manifest injustice. In re Benjamin Moore &
Co., 318 F.3d 626, 629 (5th Cir. 2002); Rosenzweig
v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir. 2003)
(quoting Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990)).
defendant bringing a Rule 59(e) motion may run afoul of the
prohibition on second or successive § 2255 motions.
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)
(post-judgment motion pursuant to Rule 60(b) may be construed
as second or successive § 2255); Williams v.
Thaler, 602 F.3d 291, 303 & n.10 (5th Cir. 2010)
(finding 59(e) claim to be second or successive). It is only
when a Rule 60 or 59(e) motion “attacks, not the
substance of the federal court's resolution of a claim on
the merits, but some defect in the integrity of the federal
habeas proceedings, ” that it does not raise a second
or successive claim. Gonzalez, 524 U.S. at 532. Any
other claim must be considered second or successive.
Gonzalez, 524 U.S. at 532.
Second or Successive § 2255 Motion
motion does not claim a defect in the proceedings, instead he
declares that the Court was wrong. If true, his remedy is by
Malta previously filed a § 2255 motion, he may not file
a second or successive motion. In pertinent part, 28 U.S.C.
§ 2255(h) provides:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to contain -
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was