1 UNITED STATES DISTRI CT COURT FOR THE DISTRICT OF COLUMBIA SYDNEY E. SMITH , : : P etitioner , : Civil Action No.: 19

- 1763 (RC) : v. : Re Document No s .: 17 , 18 , 19 , 23 : SCOTT FINLEY , : : Respondent

. : MEMORANDUM OPINION
D ENYING P ETITIONER ’ S M OTION TO A LTER OR A MEND J UDGMENT ; G RANTING P ETITIONER ’ S M OTION FOR L EAVE TO A MEND P LEADING ; G RANTING P ETITIONER ’ S M OTION FOR A C ERTIFICATE OF A PPEALABILITY ; G RANTING P ETITIONER ’ S M OTION FOR L EAVE TO P ROCEED ON A PPEAL IN F ORMA P AUPERIS I. INTRODUCTION
On March 3 0 , 2020, this Court granted Respondent Scott Finley’s motion to dismiss Petitioner Sydney E. Smith ’s “Petition for a Writ of Habeas Corpus. ” See Mem. Op. (“ MTD Mem. Op. ”) , ECF No. 1 4

. Petitioner now moves under Federal Rul e of Civil Procedure 59(e) to ask this Court to alter or amend that decision

. See Mot. Alter or Amend J. (“Mot. Amend ”), ECF
No. 17

. Petitioner also requests that this Court grant his application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and moves for leave to proceed on appeal in forma pauperis

. See Mot. Cert. of Appeal , ECF No. 18 ; Mot. for Leave , ECF No. 23. For the reasons discussed below, the Court will deny Mr. Smi th ’s motion to alter or amend judgment but grant
Mr . Smith ’s request s for a certificate of appealability and to proceed in forma pauperis

. 1

1 Petitioner also moves for leave to amend his pleading, ECF No. 19 , which the Court will grant for the reasons explained below.2 II. FACTUAL BACKGROUND On November 19, 2001, Mr. Smith was convicted of first

- degree murder in D.C. Superior
Court. See Am. Pet. at 1, 2 ECF No. 3. On February 1, 2002, Judge Retchin sentenced Mr. Smith to a term of imprisonment of thirty years to life. Id. On November 10, 2003, Mr. Smith , through counsel, filed a motion to vacate his conviction pursuant to D. C. Code § 23

- 110, the statutory mechanism for collateral review of a conviction in the District of Columbia

. Id

. The trial court denied Mr. Smith ’s § 23

- 110 motion by an order dated April 9, 2004. Mot. Dismiss at 3, ECF
No. 8. Mr. Smith filed a timely notice of appeal of that decision on April 28, 2004. Id. The District of Columbia Court of Appeals (DCCA) consolidated the direct appeal of his conviction and the § 23

- 110 appeal. See id. at 3

– 4; see also Shepard v. United States , 533 A.2d 1278, 1280 (D .C. 1987) (noting that “if [a] § 23

- 110 motion is denied, the appeal from its denial can be consolidated with the direct appeal”). Mr. Smith continued filing successive collateral review challenges, to no avail. Am. Pet. at 1

– 3. On June 11, 2019, Mr. Sm ith , proceeding pro se , made a filing styled as a petition for habeas corpus under 28 U.S.C. § 2254. See Pet., ECF No. 1. In an amended petition , Mr. Smith
argue d that his initial collateral review counsel, Mr. Myers, was constitutionally ineffective.
Am. Pet. at 8. He claim ed that Mr. Myers did not adequately explore his claim of ineffective assistance of trial counsel (“IATC”) , specifically because Mr. Myers di d not respond to a particular motion by the government during the collateral review proceedings or explore related alleged misconduct by Mr. Smith’s trial counsel, Mr. Clennon. Id. at 10.

2 Because the filings in this case are not consecutively paginated throughout, the Court refers to the ECF page numbers.3 In an opinion issued on March 30, 2020, this Court dismissed Mr. S mith’s habeas petition for lack of subject matter jurisdiction. See generally MTD Mem. Op

. The Court first noted that, generally , a federal court in this district only ha s jurisdiction under § 2254 when a D.C. Superior Court prisoner claim s that appellat e counsel was constitutionally ineffective in a direct appeal , i.e. , not for claims brought under § 23

- 110

. See Williams v. Martinez , 586 F.3d 995 (D.C. Cir. 2009)

. Mr. Smith’s claims had no apparent relation to the conduct of his counsel on direct appeal

. See Mot. Dismiss at 5; Am. Pet. at 10

. T he Court also identified two other potential

avenues that might provide jurisdiction

. The first is contained in § 23

- 110(g), which provides that a D.C. prisoner may seek a federal writ of habeas corpus if it “appears that the remedy by motion [under § 23

- 110] is inadequate or ineffective to test the legality of his detention.” D.C. Code § 23

- 110(g). The second wa s the Supreme Court’s Martinez/Trevino line of cases, which under certain circumstances, allow s federal review of procedurally barred collateral review claims. See generally Trevino v. Thaler , 569 U.S. 413 (2013); Martinez v. Ryan , 566 U.S. 1 (2012 )

. Not ably, Trevi no widens the exception espoused by Martinez to state court systems that do “ not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal .” Trevino , 569 U.S. at 42 8

. This Cou rt explained , however, that both of these exceptions appeared unavailing to Mr. Smith. First, Mr. Smith had not explained why his § 23

- 110 remedy was inadequate or ineffective. See MTD Mem. Op. at 3

. Second , the Court concluded , consistent with earlier decisions, that the District of Columbia review scheme is “not so constrained” as those in Martinez/Trevino

. See id. at 7 (quoting Richardson v. United States , 999 F. Supp. 2d 44, 49 (D.D.C. 2013) ). Accordingly, Mr. Smith’s clai ms could not be heard by this Court.4 Mr. Smith disagrees with this analysis, and now moves to alter or amend the Court’s March 30, 2020 dismissal of the action

. See Mot. Amend. He also applies for a certificate of appealability under 28 U.S.C. § 2253(c) , see Mot. Cert. of Appeal , wh ich requires that a petitioner make a “ substantial showing of the denial of a constitutional right , ” 28 U.S.C. § 2253(c)(2).
III. MOTION TO ALTER OR A MEND JUDGMENT
A. Legal Standard Rule 59(e) permits a party to file a motion to “alter or amend a judgment” within 28 days of the entry of that judgment

. Fed. R. Civ. Pro. 59(e). Rule 59(e) motions are “disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances.” Nied ermeier v. Office of Baucus , 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (quoting Anyanwutaku v. Moore , 151 F.3d 1053, 1057 (D.C. Cir. 1998)). A court may grant a motion to amend or alter a judgment only: “ ‘ (1) if there is an ‘i ntervening change of controlling law ’ ; (2) if new evidence becomes available; or (3) if the judgment should be amended in order
to ‘ correct a clear error or prevent manifest injustice. ’” Leidos, Inc. v. Hellenic Republic , 881 F.3d 213, 217 (D.C. Cir. 2018) (quoting Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) ) ; see also Solomon v. Univ. of S. Cal. , 255 F.R.D. 303, 304 (D.D.C. 2009). Relief under Rule 59(e) is not appropriate when the moving party seeks to “relitigate old matters, or to raise arguments or presen t evidence that could have been raised prior to the entry of judgment .” Niedermeier , 153 F. Supp. 2d at 28 (citation and internal quotation marks omitted); see also Turner v. U.S. Capitol Police , No. 12

- 45, 2014 WL 169871, at *1 (D.D.C. Jan. 16, 2014). The party seeking reconsideration bears the burden of establishing that relief is warranted. Elec. Privacy Info. Ctr. v. U.S. Dep ’ t of Homeland Sec. , 811 F. Supp. 2d 216, 226 (D.D.C. 2011).5 B. Analysis Petitioner moves to alter or amend this Court’s March 30, 2020 judgment pursuant to Rule 59(e)

. See Mot. Amend. A s best the Court can discern, Mr. Smith ’s motion raises several arguments concerning Respondent’s reliance on Williams , 586 F.3d at 995 , and the standard for dismissal under Rule 12(b). Id. at 4. For the reasons set forth below, Mr. Smith fails to establish that he is entitled to relief under Rule 59(e) or other avenues for seeking reconsideration of judicial decisions

. As a preliminary matter, this Court must address the timeli ness of Petitioner’s Rule 5 9(e) motion

. 3 Under Rule 59(e), a motion is only timely if it is filed within 28 days of the entry of the judgment. Fed. R. Civ. P. 59(e). A motion for reconsideration filed outside the 28

- day window provided by Rule 59(e) is typically viewed as a Rule 60(b) motion

. See McMillian v. District of Columbia , 233 F.R.D. 179, 179

– 80 n. 1 (D.D.C. 2005) ( holding that motions for reconsideration filed within Rule 59(e) ’ s time limit are treated as Rule 59(e) motions, while those filed o utside it are treated as motions under Rule 60(b) ); 4 Computer Professionals for Soc. Responsibility v. U.S.
Secret Serv. , 72 F.3d 897, 903 (D.C. Cir. 1996)

. It appears from Mr. Smith ’s attached certificate

3 Mr. Smith also moves for leave to amend his 59(e) motion, presumably under Federal Rule of Civil Procedure 15(a)(2). See Mot. Amend Pleading, ECF No. 19. Though his 15(a)(2) motion is not drafted with perfect clarity, Smith appears to use it as a means to justify any delay in receipt of his 59(e) motion

. See id. at 1

– 2

. Petitioner asserts that he did not receive a complete copy of this Court’s March 30, 2020 Order until April 4, 2020. See Mot. Amend Pleading at 1. Mr. Smith also cites FCI Schuylkill’s modified operations under Covid

- 19 as additional grounds for delay. See id. at 2, 4. To the extent the motion to amend seeks to introduce these additional arguments regarding timeliness, it is granted

. As the Court explains below, whether Mr. Smith’s 59(e) motion is timely or not does not alter the outcome here.
4 Rule 60(b) motions allow a party to seek relief from a final judgmen t “within a reasonable time” after entry of the judgment, but only for specified reasons. See Fed.R.Civ.P. 60(b). These reasons include among other things, “mistake, inadvertence, surprise, or excusable neglect,” id. at (60)(b)(1), “newly discovered evid ence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b),” id. at (60)(b)(2), and “any other reason that justifies relief,” id. at 60(b)(6).6 of service that he placed a copy of his Rule 5 9 (e ) motion in the FCI Schuylkill mail system on April 29, 2020

. See Mot. Amend at 5

. Accepting April 29, 2020 as the filing date, 5 th e date would seem to fall more than 28 days after entry of the Court’s March 30, 2020 judgment , meaning that Petitioner’s motion should be treated as one under Rule 60. Ultimately, however,

“ this Court need not determine under which Rule [Mr. Smith’s] motion was brought or should be considered, however, because as explained below, the Court finds that [Mr. Smith ’s] motion should be denied regardless of whether it is treated as a motion for reconsideration pursuant to Rule 54(b), 59(e), or 60(b). ” Ali v. Carnegie Inst. of Washington , 309 F.R.D. 77, 82 (D.D.C. 2015), aff’d , 684 F. App ’ x 985 (Fed. Cir. 2017)

. Indeed, Mr. Smith fails to raise any “intervening change of controlling law ,” allege any new evidence, or establish any clear error in the Court’s prior ruling as required under Rule 59(e)

. Fed. R. Civ. P. 59(e) ; s ee Firestone , 76 F.3d at 1208

. Mr. Smith also fails to allege fraud or any other reason that would justify relief under Rule 60(b). See Fed. R. Civ. P. 60 ( b )

. Instead, Mr. Smith appears to challenge Respondent ’s reliance on Williams and this Court’s application of Rule 12(b) in dismissing his habeas petition. 586 F.3d at 995

. Mr. Smith states
that Williams “deal[s] with a constitutional right, [and] Martinez argue[s] a[n] equitable right ; ” and , Williams “speaks to [a] direct appeal which is brough[t] in the appella[te] court, w hereas
Martinez speaks to collateral appeal which is brough[t] i[n] the trial court.” Mot. Amend at 4;

see Williams 586 F.3d at 995 ; Martinez , 566 U.S. at 16. However, t o the extent that Respondent ’s reliance on Williams was misplaced, Williams alone did not inform this Court’s decision to dismiss Smith’s action. The Court has an

5 Under the “mailbox rule,” the operative filing date for a pro se prisoner litigant is “ that on which petitioner placed his motion in the prison mail system to be sent to the Court.” Davis v. Cross , 825 F. Supp. 2d 200, 201 (D.D.C. 2011 ).7 independent duty to “ to determine whether subject

- matter jurisdiction exists, even in the absence of a challenge from any party .” Arbaugh v. Y&H Corp. , 546 U.S. 500, 501 (2006) (emphasis added). A ccordingly, Mr. Smith ’s motion for reconsideration cannot be granted on these grounds. Mr. Smith also quotes Am. Nat. Ins. Co. v. F.D.I.C. , which states that when “considering a motion to dismiss under Rule 12(b)(1) for lack of jurisdiction, the court must accept as true all uncontroverted material factual allegations cont ain ed in the complaint and ‘construe the complaint liberally [

. ] ’” 642 F.3d 1137, 1139 (D.C. Cir. 2011) ; see Mot

. Amend at
4

. Mr. Smith claims that because Respondent “has not denied any material factual allegation [s] ” contained in his complaint, the Court must accept all facts alleged by him as true. Mot

. Amend
at 4. But the Court accepted all of Mr. Smith’s allegations as true and ass umed, for the purpose of the motion, that his counsel in state collateral review proceedings was ineffective. 6 Nonetheless, as explained in this Court’s opinion , even under the facts alleged, the Court does not have jurisdiction over a habeas petition cha llenging the adequacy of Mr. Smith ’s collateral review counsel

. See MTD Mem. Op at 5

– 8 ; see also Williams , 586 F.3d at 1001 (noting that a prisoner “lack[s] a constitutional entitlement to effective assistance of counsel in state collateral proceedings ”). This Court likewise lacks jurisdiction over any claims Mr. Smith might be attempting to raise concerning the IATC because such claims could have been brought on direct appeal of the criminal case

. See Martinez , 566 U.S. at 1 7 ; see also MTD Mem. Op at 7. Thus , the Court remains convinced it lacks jurisdiction over his petition

.

6 Mr. Smith , in his habeas petition, states that he was “denied access to the court, due process, and equal protection of the law by the state court accepting a fraudulent motion and affidavit from the government and ineffective assistance of collateral review counse l.” See Am. Pet. at 6. Accordingly, he contests the “integrity of his I nitial C ollateral Re view proceeding ” and, thus, the “correctness” of the collateral review court’s ruling. Id. at 9.8 Because Mr. Smith fails to identify any proper basis for reconsideration under any standard, his motion to amend this Court’s March 30 , 2020 decision is denied.
IV. MOTION FOR CERTIFICA TE OF APPEALABILITY
A. Legal Standard
A “ prisoner seeking an appeal from a decision on a petition for habeas corpus and whose detention arose from state court proceedings must first seek a certificate of appealabilit y from a circuit justice or judge ” pursuant to 28 U.S.C. § 2253(c)

. Baisey v. Stansberry , 777 F. Supp. 2d 1, 4 (D.D.C. 2011) ; see also Slack v. McDaniel , 529 U.S. 473 (2000) ( explaining that a petitioner’s right to appeal an order denying habeas relief is “ governed by the requirements [] found at § 2253(c) ” ).
A certificate of appealability may issue only if the petitioner “has made a substantial showing of the denial of a constitutional right .” 28 U.S.C. § 2253(c)(2). A “substantial showing” includes “showing that reasonable jurists could debate whether

. . . the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to p roceed further.’” Slack , 529 U.S. at 483

– 84 (quoting Barefoot v. Estelle , 463 U.S. 880, 893 & n. 4 (1983)). If the certificate is granted, the court must specify which issues raise such a substantial showing. United States v. Weaver , 195 F.3d 52, 53 (D.C. Cir. 1999). In instances where a court denie s a habeas petition on procedural grounds “ without reaching a ny underlying constitutional claims, ” a “ certificate of appealability ‘should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’” Baisey , 777 F. Supp. 2d at 5

.9 B. Analysis Mr. Smith asserts several grounds for issuance of a certificate of appealability. First, he
asserts that a “ reasonable jurist could debate whether the government responded to [his] complaint, whether the government responded to [his] habeas corpus, and whether that respons e was timely.” Mot. Cert. of Appeal at 3. He also states that a “reasonable jurist” could debate whether the “underlying infective assistance of trial counsel claims are ‘substantial’ and such prisoners can establish that their post

- conviction counsel was ineffective under the Strickland standard.” Id

. Generally, he contends that this C ourt has jurisdiction over his IATC claim because his initial collateral review counsel was ineffective during collateral review proceedings. Id. As noted previously, the Court does not see any conceivable merit in Mr. Smith’s procedural arguments regardi ng timeliness or waiver relating to Respondent’s conduct in this litigation

. 7 But, as Mr. Smith’s references to Martinez or Trevino indicate, there is a potential argument that Mr. Smith’s underlying IATC should not be procedurally barred. As mentioned, his main objection appears to be that he was never able to fully explore the IATC claim because his collateral review counsel was in effective in raising that argument and his further attempts to litigate the issue were barred as successive petitions

. Although a prisoner “lack[s] a constitutional entitlement to effective assistance of counsel in state collateral proceeding s ,” Williams , 586 F.3d at 1001 , Trevino holds that when a state system, whether by design or operation, deprives defendants of a “meaningful opportunity” to

7 The record indicates that the Respondent’s motion was timely fi led: the order to show cause was served on Respondent on August 6, 2019, see Executed Show Cause Order, ECF No. 7, and the government filed its motion to dismiss twenty

- eight days later on September 4, 2019, within the thirty

- day period allotted by the sho w cause order.10 raise a n IATC on direct review , a federal court should not be barred from considering that IATC claim i f counsel in the collateral review proceeding was absent or ineffective , 569 U.S. at 428

. As explained in this Court’s memorandum opinion and reiterated above , the Court is not convinced that Martinez /

Trevino are relevant to the District of Columbia’s review scheme, which allows IATC claims to be raised on direct review. See Mem. Op. at 7

– 8; see also Richardson , 999 F. Supp. 2d at 49 ( determining that the D.C. systems “is not so constrained ” as those implicated by Martinez / Trevino , because a petitioner “could raise

— and actually did raise

— ineffective assistance of trial claims on direct appeal” ). But Trevino appears to contemplate a sensitive, fact

- bound analysis of the actual operation of a state’s appeal and post

- conviction system . 569 U.S. at 418 (indicating that the question is whether the “procedural system

— as a matter of its structure, design, and operation

— does not offer most defendants a meaningfu l opportunity to present a claim of ineffective assistance of trial counsel on direct appeal”) (emphasis added) . T he fact that state law technically permits a petitioner to raise IATC claims on direct review is not automatically determinative. See id. at 41 7 ( noting that the Texas system at issue “ appears at first glance to permit (but not require) the defendant initially to raise a claim of ineffective assistance of trial counsel on direct appeal ”). Indeed, the D.C. Court of Appeal s has noted that, because a direct appeal is limited to evidence in the trial record, “[i] neffective assistance of counsel is the type of serious defect which is typically not correctable on direct appeal and is therefore an appropriate ground for a collate ral attack. ” Ramsey v. United States , 569 A.2d 142, 146 (D.C. 1990) (citing Proctor v. United States , 381 A.2d 249, 252 (D.C.1977); Angarano v. United States , 329 A.2d 453, 457

– 58 (D.C. 1974) (en banc) ) ; see also Trevino , 569 U.S. at 428 (noting that “ pra ctical considerations, such as the need for a new lawyer, the need to11 expand the trial court record, and the need for sufficient time to develop the claim, argue strongly for initial consideration of the claim during collateral, rather than on direct, revi ew ”). For these reasons, and because the Circuit does not appear to have directly addressed the issue, the Court concludes that jurists of reason would (or could) find it debatable whether the Court was correct in its procedural ruling that the D.C. system is “not so constrained” as the one at issue in Trevino

. Accordingly, the Court will grant Mr. Smith’s request for a certificate of appealability. In light of the serious ness of the underlying issue, Mr. Smith deserves a chance to at least present this a rgument. See Martinez , 566 U.S. at 1 (“A prisoner ’ s inability to present an ineffective

- assistance claim is of particular concern because the right to effective trial counsel is a bedrock principle in this Nation ’ s justice system.”)

. G iven the issuance of a certificate of appealability and Mr. Smith’s uncontested representations of his financial status, his motion for leave to p roceed in f orma p auperis , ECF No. 23, is also granted.
V. CONCLUSION For the foregoing reasons, Mr. Smith ’ s moti on to alter or amend judgment (ECF No. 1 7) is DENIED , Mr. Smith’ s motion for leave to amend a pleading (ECF No. 19 ) is GRANTED , Mr. S mith ’s motion for certificate of appealability (ECF No. 18 ) is GRANTED , and Mr. Smith’s motion for leave to p roceed on appeal in f orma p auperis (ECF No. 23) is GRANTED

. An order consistent with this Memorandum Opinion is separate ly and contemporaneously issued.

Dated: September 3, 2020 RUDOLPH CONTRERAS United States District Judge