Kristich v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ORIN KRISTICH,
Petitioner,
v. 	Civ. No. 22-cv-569 WJ-KRS
Cr. No. 18-cr-02635 WJ-KRS
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO ALTER OR AMEND JUDGMENT
AND STRIKING POST-JUDGMENT MOTIONS AND FILINGS
THIS MATTER is before the Court on Orin Kristich’s (“Petitioner”) objections, filed
August 25, 2025, (Doc. 78), which the Court construes as a Motion to Alter or Amend a Judgment,
(“Motion to Alter”), under Federal Rule of Civil Procedure 59(e). Also before the Court are several
post-judgment filings by the Petitioner and Respondent United States of America (“Respondent”),
which include Petitioner’s (i) Motion for Summary Judgment, filed August 15, 2025, (Doc. 75);
(ii) Motion for Summary Judgment, filed August 18, 2025, (Doc. 76); (iii) Motion for Summary
Judgment, filed August 25, 2025, (Doc. 77); (iv) Letter, filed September 4, 2025, (Doc. 79); (v)
Motion regarding Corporate Disclosure Statement Pursuant to FRCP 26.1 & LRCP 26.1(a), (Doc.
81); (vi) Response in Opposition to Motion to Strike, (Doc. 82); and (vii) Notice of Change of
Address, (Doc. 83); as well as Respondent’s Motion to Strike Petitioner’s Post-Judgment Filings,
(Doc. 80). The Court will deny Petitioner’s Motion to Alter. The Court will also strike all post-
Judgment filings.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 2022, Petitioner, proceeding pro se, filed a motion to vacate under § 2255,
(Doc. 1), followed by numerous supplements to the petition, (Docs. 5, 7-8, 11-13), and a motion
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in support of the petition, (Doc. 10). By an Order of Reference Relating to Prisoner Cases, filed
April 20, 2023, (Doc. 19), the Court referred the matter to the Honorable Kevin R. Sweazea, United
States Magistrate Judge for the United States District Court of the District of New Mexico, for
recommended findings and disposition, and to enter non-dipositive orders. See (Doc. 19).
Magistrate Judge Sweazea thereafter directed Petitioner to file an amended motion on the proper
§ 2255 form. See (Doc. 14). On March 9, 2023, Petitioner complied and filed his Amended 2255
Petition. (Doc. 17). Respondent filed an answer on August 31, 2023. (Doc. 33). Petitioner sought
and received two extensions for his reply. (Docs. 34-35, 37-38). The Court ordered Petitioner to
file his reply no later than January 19, 2024. (Doc. 38). Subsequently, Petitioner filed numerous
motions unrelated to his reply from December 7, 2023, to June 9, 2025. See (Docs. 40, 42, 43, 48,
49, 53, 58, 61, 62, 66).
On or about August 7, 2023, Petitioner filed a writ of mandamus with the Tenth Circuit
Appellate Court. (Doc. 29). The Tenth Circuit dismissed the mandamus proceeding on October 6,
2023, for failure to file a proof of service. See (Doc. 36 at 1). On October 11, 2023, the Tenth
Circuit reinstated the mandamus. Id. On December 7, 2023, the Tenth Circuit denied the petition
for a writ of mandamus. (Doc. 55).
On April 3, 2024, Petitioner filed a petition for writ of certiorari to the United States
Supreme Court. (Doc. 54). The petition for writ of certiorari only pertained to Petitioner’s petitions
for a writ of mandamus to the Tenth Circuit previously discussed. See (Doc. 55). On June 24, 2024,
Supreme Court denied his petition for writ of certiorari. (Doc. 57). Subsequently, Petitioner’s
Amended 2255 Petition was ripe for ruling.
On July 8, 2025, Magistrate Judge Sweazea filed his Proposed Findings and Recommended
Disposition (“PFRD”). (Doc. 69). In the PFRD, Magistrate Judge Sweazea recommended denying
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Petitioner’s Amended 2255 Petition, denying as moot Petitioner’s additional pending motions, and
dismissing the case with prejudice. (Id. at 2, 71-72). The PFRD also notified the parties of their
right to file objections and consequence for failing to timely object. (Id. at 72).1
On August 8, 2025, the Court entered an Order Adopting the PFRD (“Dismissal Order”)
along with a Final Judgment. See (Docs. 72, 73). In the Dismissal Order, the Court observed that,
“[t]he PFRD notified the parties of their ability to file objections within fourteen (14) days and that
failure to do so waived appellate review.” (Doc. 72) at 1 (internal citation omitted). Petitioner filed
his untimely objections, (Doc. 78), on August 25, 2025, approximately seventeen (17) days after
the Court’s Dismissal Order and Final Judgment.
II. 	ANALYSIS
The 	Federal 	Rules 	of 	Civil 	Procedure 	do 	not 	expressly 	authorize 	a 	motion 	for
reconsideration. United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997). However, the Tenth
Circuit has held that a motion for reconsideration should be construed as a motion to alter or amend
under Rule 59(e) of the Federal Rules of Civil Procedure, or as a motion for relief from judgment
under Rule 60(b) of the Federal Rules of Civil Procedure. Id. The timing of the motion dictates
whether it will be analyzed under Rule 59(e) or 60(b). Vreeken v. Davis, 718 F.2d 343, 345 (10th
Cir. 1983). Rule 59(e) applies if the motion is filed within twenty-eight days of entry of judgment.
Id.; see also Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Manco v. Werholtz,
528 F.3d 760, 761 (10th Cir. 2008). Grounds for setting aside the judgment 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). A motion to alter is not an opportunity “to revisit issues already
1 Objections to the PFRD were due July 25, 2025, which included the three (3) days due to mail service. (Doc. 69).
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addressed or advance arguments that could have been raised earlier.” United States v. Christy, 739
F.3d 534, 539 (10th Cir. 2014); see also Servants of Paraclete, 204 F.3d at 1012 (holding that a
motion to alter or amend under Rule 59(e) is an “inappropriate vehicle[] to reargue an issue
previously addressed by the court when the motion merely advances new arguments, or supporting
facts which were available at the time of the original motion”). A district court has considerable
discretion in deciding whether to disturb a judgment under Rule 59(e). See Phelps v. Hamilton,
122 F.3d 1309, 1324 (10th Cir. 1997).
Final judgment dismissing Petitioner’s case was entered on August 8, 2025. (Doc. 73).
Petitioner filed the objections on August 25, 2025, seventeen days after judgment was entered; the
Court, therefore, applies Rule 59(e) to the analysis. To prevail, Petitioner must show an intervening
change in controlling law, the availability of newly discovered evidence, or a clear error that must
be corrected or to prevent manifest injustice. Here, Petitioner does not rely on new evidence, law,
or a mistake, nor does the post-judgment filing acknowledge the Dismissal Order and Final
Judgment. See (Doc. 78). The Court thus finds the manifest injustice exception applies even though
Petitioner fails to address this exception in the Motion to Alter.
Petitioner asserts 52 superfluous objections to the PFRD that recommended denying his
motion to vacate the sentence. The Court has thoroughly reviewed these objections and finds
Petitioner merely restates his 84 arguments previously addressed and resolved by the Magistrate
Judge’s PFRD and the Court’s Dismissal Order and Final Judgment. The Court already explained
in detail why the record fails to show that: (1) defense and appellate counsel were deficient; (2)
Petitioner’s due process rights were violated; and (3) the ex post facto clause of the United States
Constitution was violated. See generally (Docs. 68, 72). Notwithstanding, Petitioner also
summarily argues that the Magistrate Judge erred by applying the incorrect legal standard to his
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84 claims. (Doc. 78) at 7. Petitioner does not state what legal standard he believes the Magistrate
Judge should have applied. Nor does Petitioner apply a particular legal standard to the facts of his
case.
Therefore, the Court finds that the Motion to Alter presents arguments that are cumulative
of the claims that this Court has already considered, and resolved, in Respondent’s favor. Further,
Petitioner has not demonstrated any a clear error that must be corrected or a manifest of injustice.
Accordingly, Petitioner has failed to show that he is entitled to any relief.
IT IS THEREFORE ORDERED AS FOLLOWS:
1. 	Petitioner’s objections, filed August 25, 2025, (Doc. 78), which the Court construes
as a Motion to Alter or Amend a Judgment under Federal Rule of Civil Procedure 59(e), is
DENIED;
2. 	Respondent United States of America’s Motion to Strike (Doc. 80) is GRANTED;
3. 	Petitioner Orin Kristich’s post-Judgment filings (Docs. 74, 75, 76, 77, 79, 81, 82,
and 83) are STRICKEN;
4. 	the CLERK is directed to return, unfiled, any further submissions in this civil case
by Petitioner Orin Kristich other than a document required by the Tenth Circuit Court of Appeals
or the Federal Rules of Appellate Procedure for Petitioner’s pending appeal; and
5. 	this civil case is and remains CLOSED.
IT IS SO ORDERED.
/s/
___________________________________
WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
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