Banister v. Davis

1. WHETHER AND UNDER WHAT CIRCUMSTANCES A TIMELY RULE 59 (e) MOTION SHOULD BE RECHARACTERIZED AS A SECOND OR SUCCESSIVE HABEAS PETITION UNDER GONZALEZ v. CROSBY, 545 U.S. 524 (2005)? 2. In Gonzalez V. Crosby this Court held that a Rule 60(b) motion that either adds new habeas claim or attacks the court's previous resolution of the habeas claims, should be treated as a successive habeas petition under AEDPA's §2244. Does Gonzalez extend to post-judgment motions filed under Rule 59(e) of the Federal Rules of Civil Procedure? 3. If so, should a timely filed Rule 59(e) motion toll the the time to file a notice of appeal under Federal Rules of Appellate Procedure, Rule 4(a)(4)(A)(iv)? 4. Whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has been recharacterized as a successive habeas petition if that recharacterization will effect his ability to file a timely notice of appeal?