W.D.N.C. Notes Split Re Whether Rule 59(e) Motions Are Successive Applications for Habeas Relief

Per Strickland v. Lee, Slip Copy, 2007 WL 1792503 (W.D.N.C. June 19, 2007):

The Court is aware that two Federal Appellate Courts have issued published opinions treating the movants' Rule 59(e) motions as successive applications for habeas relief under 28 U.S.C. § 2244(b). See U.S. v. Pedraza, 466 F.3d 932, 933 (10th Cir.2006) ( citing Spitznas v. Boone, 464 F.3d 1213 (10th Cir.2006) (finding that Rule 59(e) motion was, in part, a successive § 2255 motion for habeas relief); U.S. v. Lambros, 404 F.3d 1034, 1036 (8th Cir.2005) (requiring certificate of appealability for Rule 59(e) motion because the motion “sought ultimately to resurrect the denial of [the] earlier [28 U.S.C.] § 2255 motion”); but see, Curry v. U.S., 307 F.3d 664, 666 (7th Cir.2002) (Since a 59(e) motion does not seek collateral relief, it is not subject to AEDPA's statutory limitations on such relief). The Court also is aware that separate three-judge panels of the Fourth Circuit Court of Appeals have issued unpublished opinions finding that the movants' Rule 59(e) motions were successive motions attacking their convictions and sentences under § 2255. See U.S. v. Mann, 141 Fed.Appx. 175 (4th Cir.2005) (unpublished) (citing United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir.) cert. denied, 540 U.S. 995, 124 S.Ct. 496, 157 L.Ed.2d 395 (2003).); U.S. v. Martin, 132 Fed.Appx. 450 (4th Cir.2005) (unpublished) (citing Winestock, 340 F.3d at 207). However, in light of the split among the circuit courts, and in the absence of a published opinion from the Fourth Circuit, the Court will not treat Petitioner's Rule 59(e) Motion as successive under § 2244(b).