The opinion of the court was delivered by: Judge Caldwell
On May 14, 2007, the Court summarily dismissed Wiley's pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 for lack of jurisdiction as it was challenging a nonexistent September 8, 2003, federal sentence that Petitioner did not receive in United States v. Wiley, 3:02-CR-0160 (M.D. Pa. 2003)(Caputo, J.). That criminal case was dismissed by Judge Caputo after Wiley was found incompetent to stand trial. Wiley did not, and will not, receive a federal sentence as a result of that action as all criminal charges in that matter were discharged. As Wiley included civil rights charges in his habeas petition, the Court did not address them as relief was not available by means of his habeas action. The Court did advise Wiley, however, that as he has accrued three strikes as defined by 28 U.S.C. § 1915(g), the Court could not grant him in forma pauperis status in future civil rights actions unless he was in imminent danger of serious physical harm.
On May 25, 2006, Petitioner filed a timely "Memorandum to Vacate for Reconsideration or Certificate of Appealability" pursuant to Fed. R. Civ. P. 59(e). For the reasons that follow, we will deny Wiley's motion.
A motion to alter or amend is of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A Rule 59(e) motion cannot be used to raise arguments which could, and should, have been made before the court issued its final judgment. Builes v. Nye, 253 F. Supp. 2d 818, 820 (M.D. Pa. 2003)(Caldwell, J.). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds: (1) an intervening change in the controlling law; (2) evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. See Max's Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir. 1999); Builes, 253 F. Supp. 2d at 820. Rule 59(e) may be used in 2254 proceedings. See United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003).
Wiley appears to be arguing in his present motion that he seeks to challenge the validity of his state conviction and sentence rather than his nonexistent federal sentence in Wiley, supra. If true, Wiley did not present a challenge to his state sentence in his original petition. The original petition clearly defines the sentence or conviction he sought to challenge as derived from Wiley, supra. (See Doc. 1). For this reason Wiley's motion for reconsideration will be denied. However, if Wiley seeks to challenge his state sentence, he may do so by filing a separate habeas corpus petition pursuant to 28 U.S.C. § 2254.
As to Wiley's request for a certificate of appealability, this request will also be denied. When a district court denies a § 2254 application, it must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. A certificate of appealability is appropriate when a petitioner makes a "substantial showing of the denial of a constitutional right" by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, where a federal district court denies a habeas application on procedural grounds without reaching the underlying constitutional claims, the court is not required to issue a certificate of appealability unless the petitioner demonstrates that jurists of reason would find it debatable: (1) whether the application states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. at 1604. Originally, this Court found it lacked jurisdiction to consider Wiley's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 because it challenged a nonexistent federal conviction. Reasonable jurists would not find this conclusion to be debatable. Consequently, the court declines to issue a certificate of appealability.
To the extent Wiley's motion seeks allowance to file a separate civil rights action pursuant to 42 U.S.C. § 1983 without paying the requisite $350.00 filing fee, the Court is unable to provide him the requested relief via a federal habeas action. In any event, this Court does not have the authority to ignore the mandates of 28 U.S.C. § 1915(g), which dictates that convicted prisoners who have filed three or more lawsuits or appeals that have been dismissed as frivolous cannot proceed in forma pauperis unless imminent harm is asserted.
AND NOW, this 7th day of June, 2007, it is ordered that Wiley's Motion to Vacate for Reconsideration or a Certificate of Appealability (doc. 7) is denied.
William W. Caldwell United States ...