Leflore v. United States of America (INMATE 3)

Filing 48

ORDER denying 46 MOTION for rehearing or reconsideration, as further set out in order. Signed by Honorable Judge Abdul K. Kallon on 5/6/2019. (cnw, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TONY JAMES LEFLORE,

)
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)

Civil Action No. 2:17cv393-AKK
(WO)

ORDER
Before the court is Petitioner’s motion for rehearing or reconsideration, doc.
46. Petitioner seeks reconsideration of this court’s order, doc. 44, denying
Petitioner’s motion for leave to file an interlocutory appeal, doc. 43, from the
Magistrate Judge’s order of January 14, 2019, doc. 41, denying Petitioner’s motion
to correct clear error or prevent a manifest injustice, doc. 40. In his motion to
correct clear error or prevent a manifest injustice, doc. 40, Petitioner maintained
that the Magistrate Judge erred by failing to construe his motion to compel, doc.
36, and his motion to rehear, doc. 38, as motions for partial summary judgment in
this § 2255 action. With one exception, Petitioner’s pending motion for rehearing
or reconsideration, doc. 46, presents arguments this court has already considered
and rejected.

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Petitioner states that, in the Magistrate Judge’s January 14, 2019 order, doc.
41, the Magistrate Judge refers to and relies upon a “fictitious document,” an order
of procedure purportedly entered by the court on June 6, 2017. See doc. 46 at 3-7.
Petitioner states that no such order of procedure was entered by the court.
Petitioner is correct insofar as the Magistrate Judge’s order of January 14, 2019
incorrectly refers to the entry date of the order of procedure as June 6, 2017. See
doc. 41 at 1. The court actually entered the order of procedure on June 21, 2017.
Critically, however, the Magistrate Judge referred to the order of procedure by its
correct docket number, doc. 4, and also correctly represented what the order of
procedure held. See doc. 41 at 1 (noting that “this court advised the parties that ‘no
motion for summary judgment, motion to dismiss or any other dispositive motions
addressed to the motion to vacate may be filed by any party without permission of
the court’ and that ‘[i]f any pleading denominated as a motion for summary
judgment, motion to dismiss or other dispositive motion is sent to the court, the
court shall not file or otherwise treat the pleading as a dispositive motion until and
unless further order of the court.’ Doc. # 4 at 3–4.”).
The citation to the incorrect entry date of the order of procedure does not
vitiate the language of the order of procedure or affect the legal conclusions in the
Magistrate Judge’s January 14, 2019 order denying Petitioner’s motion to correct
clear error or prevent a manifest injustice. As this court found in its order of
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February 8, 2019, the Magistrate Judge’s January 14, 2019 order denying
Petitioner’s motion involves no controlling issue of law on which there is
substantial ground for difference of opinion, and an immediate appeal would not
materially advance the ultimate termination of the litigation in this case. Doc. 44 at
1; see 28 U.S.C. § 1292(b). Petitioner has not shown that reconsideration of his
motion for leave to file an interlocutory appeal is warranted. Accordingly, it is
ORDERED that the motion for rehearing or reconsideration, doc. 46, is DENIED.
DONE the 6th day of May, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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