Xiong v. McCormick

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 14, 2020
• Docket: 19-6163
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 14, 2020 _________________________________ Christopher M. Wolpert Clerk of Court PAO XIONG,

Petitioner - Appellant,

v. No. 19-6163 (D.C. No. 5:17-CV-00875-R) WILLIAM MCCORMICK; JENNIFER (W.D. Okla.) TURNAGE,

Respondents - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.** _________________________________

Pro se1 plaintiff-appellant Pao Xiong filed a Rule 59(e) motion to alter or

amend the district court’s previous denial of his Rule 60 motion for relief from

judgment. The district court denied Xiong’s Rule 59(e) motion and he appeals that

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Xiong is proceeding pro se, we liberally construe his filings. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). That said, liberally construing a pro se filing does not include supplying additional factual allegations or constructing a legal theory on the appellant’s behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997). denial. We affirm the district court’s judgment and grant Xiong’s motion to proceed

in forma pauperis.

I.

In 2017, Pao Xiong, a federal inmate, sued two Bureau of Prisons (“BOP”)

officials. He asserted that the punishment he received for allegedly stealing food

violated the Administrative Procedure Act (“APA”). On June 14, 2018, the district

court dismissed Xiong’s complaint because 18 U.S.C. § 3625 rendered the APA

inapplicable to claims like Xiong’s, which challenged a BOP decision regarding “the

place of the prisoner’s imprisonment.” R. 27 (citing 18 U.S.C. §§ 3621(b), 3625).

On November 5, 2018, after the time for filing an appeal had expired, Xiong

filed a motion for relief from judgment under Federal Rule of Civil Procedure

60(d)(1). The district court liberally construed Xiong’s motion and considered

whether he was entitled to relief under Rules 60(b)(1), 60(b)(6), or 60(d)(1). Still,

the district court denied Xiong’s motion. It concluded that Xiong was time-barred

from seeking relief under Rules 60(b)(1) and 60(b)(6) because Xiong did not file his

motion before the time to appeal had expired.2 The district court also noted that even

if Xiong’s motion were timely filed, Xiong would not have been entitled to relief

under Rule 60(b) because he was merely “pursuing arguments that he could and

2 The district court explained that a “Rule 60(b)(1) motion asserting mistake of law is untimely . . . unless brought within the time to appeal.” The district court also concluded that because Xiong’s claims were untimely under Rule 60(b)(1), relief was likely unavailable under Rule 60(b)(6). R. 119 (citing United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002) (refusing to allow appellants to rely on Rule 60(b)(6) to avoid the time bar for Rule 60(b)(3) because 60(b)(6) “is restricted to reasons other than those enumerated in the previous five clauses”)). 2 should have raised on direct appeal.” R. 119. Finally, the district court decided that

Xiong was not entitled to relief under Rule 60(d)(1) because he failed to present

evidence of a grave injustice. R. 121.

On June 3, 2019, Xiong filed a Rule 59(e) motion to alter or amend the district

court’s previous denial of his Rule 60 motion for relief. The district court denied

Xiong’s Rule 59(e) motion and Xiong now appeals that decision. We affirm the

district court’s judgment.

II.

We review the district court’s denial of a Rule 59(e) motion for abuse of

discretion. Nelson v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). The

trial court abuses its discretion by making a decision that is “arbitrary, capricious,

whimsical, or manifestly unreasonable.” Somerlott v. Cherokee Nation Distributors,

Inc., 686 F.3d 1144, 1152 (10th Cir. 2012). Under this standard, “a trial court’s

decision will not be disturbed unless the appellate court has a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id.

Rule 59(e) motions may be granted when “the court has misapprehended the

facts, a party’s position, or the controlling law.” Nelson, 921 F.3d at 929. Grounds

warranting Rule 59(e) relief “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.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000). Rule 59(e) motions are not appropriate for “revisit[ing] issues

3 already addressed or advanc[ing] arguments that could have been raised in prior

briefing.” Nelson, 921 F.3d at 929 (quoting Servants of Paraclete, 204 F.3d at 1012).

III.

Xiong asserts that the district court erred by denying his Rule 59(e) motion to

alter or amend its previous denial of his Rule 60 motion. Xiong’s appeal fails

because he cannot show that the district court “misapprehended the facts, a party’s

position, or the controlling law” when it denied his Rule 60 motion. See Nelson, 921

F.3d at 929.

Xiong appears to make two arguments on appeal. First, he argues that the

district court’s legal conclusions were clearly erroneous because the court overlooked

important facts. Specifically, he claims that the district court ignored his assertion

that his failure to understand the post-judgment filing deadlines was excusable

because he “didn’t have access to either the relevant federal rules or his legal

material to identify the deadlines.” Aplt. Br. at 5. This argument fails, however,

because “inadvertence, ignorance of the rules, or mistakes construing the rules do not

usually constitute ‘excusable’ neglect.” United States v. Torres, 372 F.3d 1159, 1163

(10th Cir. 2004); United States v. Madrid, 633 F.3d 1222, 1224 (10th Cir. 2011)

(“[I]gnorance of appellate deadlines is not excusable neglect.”); see also Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (declaring in the AEDPA context that

“ignorance of the law, even for an incarcerated pro se petitioner, generally does not

excuse prompt filing”).

4 Second, Xiong argues that he was entitled to relief under Rule 60(d)(1)

because he presented sufficient evidence of a grave injustice. See Sindar v. Garden,

284 F. App’x 591, 596 (10th Cir. 2008) (unpublished) (quoting United States v.

Beggerly, 524 U.S. 38, 47 (1998) (explaining that a Rule 60(d)(1) independent action

“should be available only to prevent a grave miscarriage of justice.”)). But this same

argument was already addressed and rejected by the district court when it denied

Xiong’s Rule 60(d)(1) motion. Because Rule 59(e) motions are not appropriate for

“revisit[ing] issues already addressed,” Xiong’s argument fails.

IV.

For these reasons, the district court did not abuse its discretion by denying

Xiong’s Rule 59(e) motion to alter or amend the district court’s previous denial of his

Rule 60 motion. We therefore AFFIRM the district court’s judgment. We also grant

Xiong’s motion to proceed in forma pauperis.

Entered for the Court

Allison H. Eid Circuit Judge