UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANTHONY LAMONT DAVIS,
Petitioner,

v. Civil Case No. 10-761 (RJL)

JAMES N. CROSS,

Resp0ndent.

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MEMORANDUM OPINION AND ORDER

This case is currently before the Court on petitioner’s motion to reconsider the
dismissal of his habeas petition as untimely. Because the new information provided by
petitioner does not affect the timeliness of his petition, this motion will be denied.

I. Background.

Petitioner is currently incarcerated at United States Penitentiary Hazelton, where
he is serving multiple sentences imposed by the Superior Court of the District of
Columbia for first-degree murder while armed, possession of a firearm during a crime of
violence or dangerous offense, and carrying a pistol without a license. Inmate Locator,
Fed. Bureau of Prisons, http://www.bop.goV/iIoCZ/Locatelnmate.jsp (search for Register
Number 32037-037); U.S.’ Mot. to Dismiss Pet’r’s Pet. for a Writ of Habeas Corpus, at
l-2, ECF No. 6. Petitioner filed a habeas petition on May 12, 2010. Pet. for a Writ of

Habeas Corpus, ECF No. 1 [hereinafter Pet.]. But, on March 27, 2011 this Court

dismissed that petition because it was untimely. Davis v. Cross, 774 F. Supp. 2d 62
(D.D.C. 2011), ECF Nos. 10, 1l.

Petitioner now moves for reconsideration, arguing that the Court failed to consider
other state post-conviction and collateral proceedings that tolled the running of the statute
of limitations. Pet. for a Writ of Habeas Corpus by a Being in Custody at 2, ECF No. 13
[hereinafter Pet’r’s Mot.]. In support, petitioner has provided a list of dates and docket
sheets, purporting to show several post-conviction and other collateral proceedings not
considered by this Court. Dates, Ex. A at 7-15 [hereinafter "Ex. A", ECF No. 14.
Respondent opposes this motion. Resp’t’s Resp. to Pet’r’s Mot. for Relief from J. at l,
ECF No. 16 [hereinafter Resp’t’s Opp’n].

II. Analysis.

A. Petitioner Filed a Rule 59(e) Motion.

Although petitioner does not identify the Federal Rule of Civil Procedure under
which he moves for reconsideration, see Pet’r’s Mot., his filing will be construed as a
motion for reconsideration under Federal Rule of Civil Procedure 59(e).l Rule 59(e)
provides for motions to alter or amend final judgments and mandates that such motions
"must be filed no later than 28 days after entry of the judgment." Fed. R. Civ. P. 59(e).
"If a person files a motion for reconsideration within twenty-eight days of the judgment

or order of which he complains, courts consider it a Rule 59(e) motion; otherwise, they

l Petitioner titles his filing as a "Petition for a Writ of Habeas Corpus," but the

filing’s content indicates that petitioner seeks reconsideration of this Court’s dismissal of
his original petition. See Pet’r’s Mot. at 1 (requesting that the Court "construe my
content in its proper manner" and noting that he is "seeking reconsideration of judgment
in this Case").

treat it as a Rule 60(b) motion." S.E.C. v. Bilzerz`an, 729 F. Supp. 2d 9, 12 (D.D.C. 20l0).

The Court entered its judgment in this case on March 27, 201 l. See Davis, 774 F. Supp.
2d at 66. Under the prisoner mailbox rule, the operative filing date is that on which
petitioner placed his motion in the prison mail system to be sent to the Court. See
Houston v. Lack, 487 U.S. 266, 270-71 (1988). Petitioner sent his motion to the Court
sometime between April 4, 201 l~the date on which the motion was notarized, see
Pet’r’s Mot. at 3-and April 15, 201 l--the date on which the motion as received by the
Court, see ia’. at l. Because petitioner filed the instant motion within the 28-day period,
this Court will consider the motion under Rule 59(e).

A court’s review of a "[a] Rule 59(e) motion is discretionary and need not be
granted unless the district court finds that there is an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice." Firestone v. Fireslone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal
quotation marks omitted).

B. This Motion Will Be Denied.

Petitioner now claims that this Court’s previous dismissal of his habeas petition
was incorrect because certain post-conviction proceedings should have tolled the running
of the limitations period. Even upon consideration of those proceedings, however, the
petition is still untimely; and, therefore, petitioner’s motion must be dismissed.

ln its March ruling, the Court began with the following premises: (l) A one-year
limitations period applies under 28 U.S.C. § 2244(d)(l) to habeas petitions and (2) this

limitations period begins to run once a conviction becomes final, but may be tolled under

3

§ 2244(d)(2) during the pendency of any state-court post-conviction or other collateral
proceedings and may also be equitably tolled. Davis, 774 F. Supp. 2d at 64. The Court
then found the following: (l) petitioner’s convictions became final on June 16, 2003; (2)
the one-year limitations period was not statutorily tolled, because no state-court post-
conviction or other collateral proceedings were pending during the year after conviction,
i.e., the deadline for filing a valid petition was June 16, 2004; and (3) even if the one-year
limitations period was equitably tolled due to alleged attorney abandonment, such tolling
ended on January l, 2006, i.e., the deadline for filing a valid petition was January 2,
2007. Ia’. at 65-66. This Court therefore concluded that the petition was not timely filed
and dismissed this case. Ia’. at 66.

Petitioner now argues that the Court failed to consider the pendency of some post-
conviction or other collateral proceedings. See Pet’r’s Mot. at 2 (contending that "some
[d]ates are missing in the Court[’]s Memorandum" Opinion). Petitioner points out that
because these proceedings "are all with-in a year of each other," his petition should not
be considered untimely. Ex. A at 7. Respondent counters that because "petitioner’s
conviction became final before petitioner filed the post-conviction motions" in the
proceedings he references on his list of dates, those proceedings "are irrelevant to
petitioner’s claim that his habeas petition is not time barred." Resp’t’s Opp’n at l.
Neither party is correct. Petitioner fails to recognize that the threshold issue is whether
the time between all such post-conviction proceedings is less than one year. See
§ 2244(d). And, of course, petitioner’s post-conviction and other collateral proceedings

took place after his conviction became final. Again, the threshold issue is whether more

4

than one year passed between the final conviction date and the habeas petition filing date,
excluding any time during which state post-conviction or other collateral proceedings
were pending. See id. However, even considering petitioner’s new proceedings, this
case is still not timely.

This Court previously concluded that the one-year limitations period was not
statutorily tolled because the first collateral attack was commenced on March 22, 2007,
more than one year after petitioner’s convictions became final on June 16, 2003. Davis,
774 F. Supp. 2d at 65-66. Petitioner now points out, however, that he commenced an
earlier state post-conviction proceeding on May l7, 2005 by filing a motion to recall the
mandate of the District of Columbia Court of Appeals. See Ex. A. But this proceeding,
like the one commenced in 2007, also was filed more than one year after petitioner’s
convictions became final; the one-year limitations period had already expired--so long as
there was no basis for equitable tolling.

Further, this Court concluded that, even assuming that there was a basis for
equitable tolling, the one-year limitations period had expired because petitioner filed this
petition more than one year after any equitable tolling had ended on January l, 2006. 774
F. Supp. 2d at 66. Petitioner tries to argue, however, that the other state post-conviction
or other collateral proceedings at various points through 2009 tolled the running of the
statute of limitations. See Pet’r’s Mot. at l-2; Ex. A. Although the running of the statute
of limitations was tolled by these proceedings, this action is still untimely, even assuming
petitioner is entitled to equitable tolling, because more than one year elapsed when such

proceedings were not pending between January l, 2006 and May l2, 2010. See §

5

2244(d)(2).2 Because this case is still untimely even upon consideration of the new dates
furnished by petitioner, petitioner’s motion for reconsideration must be, and therefore, is
denied.
III. Order.

Accordingly, it is hereby

ORDERED that the Petition for a Writ of Habeas Corpus by a Being in Custody,
ECF No. 13, is construed as a motion for reconsideration and DENIED.

SO ORDERED thisZ»°_h-clay of November, 201 l.

l

RICHARD\J¥ LEoN
United States District Judge

2 On January l, 2006, petitioner was engaged in appellate proceedings concerning

his motion to recall the mandate of the D.C. Court of Appeals. See Ex. A. Those
proceedings ended on May 5, 2006, when the Court of Appeals denied petitioner’s
motion for reconsideration of its order denying the motion to recall the mandate. ]a'.
Three hundred twenty-two days then elapsed with no proceedings pending. Ia’. Then, on
March 22, 2007, petitioner filed a state-court habeas corpus petition, the denial of which
was affirmed on appeal on August 15, 2008. ld. That proceeding was no longer pending
as of November 3, 2008, when petitioner (apparently) failed to timely petition for a writ
of certiorari to the U.S. Supreme Court. See U.S.S. Ct. R. 13.1. Sixty-six days then
elapsed with no proceedings pending. Then, on January 7, 2009, petitioner filed a state-
court motion to vacate his conviction and for a new trial, the denial of which was
affirmed on appeal on August 17, 2009. See Ex. A. Petitioner then sought a rehearing en
banc, which was denied on December 2l, 2009. That proceeding was no longer pending
as of March 2l, 2010, when petitioner (apparently) failed to timely petition for a writ of
certiorari to the U.S. Supreme Court. See U.S.S. Ct. R. 13.3. Fifty-three days then
elapsed with no proceedings pending. Then, on May 12, 2010, petitioner commenced
this case. See Pet. Thus, over 400 days elapsed between the end of the possible equitable
tolling period and this action, excluding time during which other collateral proceedings
were pending.

