Brown v. Wasmer

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

TERRON BROWN,

Petitioner, 8:20CV343

vs.

MEMORANDUM AND ORDER

STATE OF NEBRASKA, and TODD

WASMER, Warden;

Respondents.

This matter is before the court on Petitioner Terron Brown’s Motion for

Reconsideration (filing 17), which the court construes as a Rule 59(e) motion to

alter or amend1 the court’s January 25, 2021 Memorandum and Order (filing 13)

and Judgment (filing 14) dismissing Brown’s Amended Petition for Writ of Habeas

Corpus (filing 11) with prejudice.

Rule 59(e) motions serve the limited function of correcting manifest errors

of law or fact or to present newly discovered evidence. United States v. Metro. St.

Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). Such motions 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. Id.

Here, Brown argues the court erred when it determined that his habeas

petition was a second or successive petition because his “first § 2254 filing (Brown

v. State of Nebraska, Case No. 8:10CV236) can not [sic] be legaly [sic] construed

as a first claim ‘presented’ because the court entertaining the motion did no have

jurisdiction to do so” since Brown had not exhausted his state court remedies.

1 A Rule 59(e) motion “must be filed no later than 28 days after the entry of

judgment.” Fed.R.Civ.P. 59(e). Petitioner’s motion was timely filed on February 5, 2021.

(Filing 17 at CM/ECF pp. 9–10.) Brown contends that the Honorable Warren K.

Urbom’s ruling on the merits of Brown’s first habeas petition violated 28 U.S.C. §

2254(b)(1)(A)2 because Brown had not exhausted his state court remedies at the

time he filed his petition in Case No. 10CV236 as he could not pursue Nebraska

state postconviction remedies until after he completed his federal sentence and

began serving his Nebraska sentence.

Brown is incorrect. Section 2254(b)(2) specifically provides that “[a]n

application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.” 28 U.S.C. § 2254(b)(2). Indeed, Judge Urbom acknowledged

the complicated procedural issues relating to the exhaustion of Brown’s habeas

claims and chose to address the claims on the merits in the interest of judicial

economy as federal courts are permitted to do. (See Filing No. 31 at CM/ECF pp.

3–4, Case No. 8:10CV236 (citing Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th

Cir. 1999) (“Although the procedural bar issue should ordinarily be resolved first,

judicial economy sometimes dictates reaching the merits if the merits are easily

resolvable against a petitioner while the procedural bar issues are complicated.”)).)

Upon careful review of Brown’s motion, the court concludes Brown has not

demonstrated any legitimate reason for altering, amending, or otherwise obtaining

any relief from the court’s judgment of dismissal. He has not shown that the

dismissal was the result of manifest error of law or fact. Thus, Brown has failed to

establish sufficient grounds for setting aside the court’s judgment under Rule

59(e).

IT IS THEREFORE ORDERED that: Petitioner’s Motion for

Reconsideration (filing 17) is denied.

2 Section 2254(b)(1)(A) provides that an application for a writ of habeas corpus on

behalf of a person in state custody “shall not be granted unless it appears that . . . the

applicant has exhausted the remedies available in the courts of the State.”

Dated this 12th day of February, 2021.

BY THE COURT:

Kichard Gp. Ax

Richard G. “7

Senior United States District Judge