Jenkins v. Allen
MEMORANDUM OPINION AND ORDER that Mr. Jenkins's Rule 59(e) 59 MOTION To Alter or Amend this Court's Final Judgment is DISMISSED WITHOUT PREJUDICE IN PART and otherwise is DENIED. Signed by Judge Virginia Emerson Hopkins on 5/10/2017. (JLC)
2017 May-10 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARK ALLEN JENKINS,
) Case no. 4:08-cv-00869-VEH
JEFFERSON S. DUNN, Commissioner, )
Alabama Department of Corrections, )
MEMORANDUM OPINION AND ORDER
This death penalty habeas action brought pursuant to 28 U.S.C.A. § 2254
comes before the Court on petitioner’s Motion To Alter or Amend Judgment and
To Reconsider Denial of a Certificate of Appealability (doc. 59). The respondent
has opposed (doc. 63) and petitioner has replied (doc. 66). Additionally, on April
15, 2017, the petitioner filed a Notice of Supplemental Authority (doc. 70).
Accordingly, the matter is ripe for determination.
The Court’s 347-page Memorandum Opinion (doc. 57) entered on August
31, 2016, comprehensively sets out the undersigned’s reasoning and conclusions
on each of petitioner’s myriad habeas claims. Petitioner has not satisfied the Rule
59(e) standard for reconsideration, as his arguments either rehash what he has
already said or otherwise do not meet the “manifest error” standard for relief.
Additionally, any “new” arguments are jurisdictionally barred. Accordingly, the
Motion is due to be, and hereby is, DENIED.
The petitioner, Mark Allen Jenkins (“Mr. Jenkins”), was convicted and
sentenced to death in the Circuit Court of St. Clair County, Alabama, for the 1989
murder of Tammy Ruth Hogeland during the course of a robbery and kidnaping.
The Alabama state courts devoted significant efforts to hearing and adjudicating
Mr. Jenkins’s direct appeal. The Supreme Court of the United States has denied
certiorari three times in this action.
On May 16, 2008, Mr. Jenkins timely filed in this District Court a 113-page
§ 2254 Petition for Writ of Habeas Corpus by Person in State Custody under
Death Sentence. On August 11, 2008, Mr. Jenkins filed an amended § 2254
Petition in this District Court. The respondent filed an answer to the amended
petition. On November 12, 2008, this action was stayed to allow Mr. Jenkins to
pursue a second state Rule 32 petition, which he filed in state court on October 1,
2008. The Alabama State Court heard and adjudicated Mr. Jenkins’s second Rule
32 petition. On June 20, 2013, Mr. Jenkins filed an amended petition in this
District Court, raising his newly-exhausted Rule 32 claim. The respondent filed an
answer to the amendment on September 3, 2013. Mr. Jenkins filed a reply brief on
November 14, 2013.
On November 14, 2013, Mr. Jenkins filed a Motion for an Evidentiary
Hearing, in which he raised an Atkins claim. The respondent opposed this motion.
After Mr. Jenkins filed his reply brief in that motion, on March 31, 2015, this
Court denied Mr. Jenkins’s motion.
On August 24, 2015, this Court ordered the respondent to supplement the
record, which the respondent did two days later. On August 31, 2016, after
considering all the pleadings and the voluminous record, this Court issued its
Memorandum Opinion and its Order denying the petition and denying a certificate
of appealability as to all of Mr. Jenkins’s claims.
On September 28, 2016 (the 28th calendar day after entry of the August 31
Memorandum Opinion and Order), Mr. Jenkins filed his 87-page Motion To Alter
or Amend Judgment and To Reconsider Denial of a Certificate of Appealability
under Rule 59(e), FED. R. CIV. P. In that Motion, petitioner asks that this Court
reexamine all or virtually all of the issues denied by this Court.
Specifically, the Motion asserts that this Court erred because it “largely
adopt[ed] Alabama courts’ unreasonable determinations” (doc. 59 at 5) in denying
Mr. Jenkins’s claim of (1) ineffective assistance of counsel (with 7 sub-claims
under this claim) (doc. 59 at 5-70); (2) juror misconduct (with 3 sub-claims) (id. at
70-75); (3) intellectual disability (“Atkins”) (with 24 “aspects” listed without any
analysis) (id. at 75-82); and (4) ineffective assistance claims based on Batson
(with 12 “aspects” listed without any analysis) (id. at 82-87).1
STANDARD OF REVIEW
Rule 59(e) Standard Generally
The standard in this Circuit will be applied by this Court.
“The decision to alter or amend judgment is committed to the sound
discretion of the district judge and will not be overturned on appeal absent an
abuse of discretion.” Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763
F.2d 1237, 1238-39 (11th Cir. 1985) (citing Futures Trading Comm’n v. Am.
Commodities Group, 753 F.2d 862, 866 (11th Cir. 1984)). “While, as a rule,
parties are not entitled to ‘two bites at the apple’, there are occasions in which
reconsideration should be entertained.” Lussier v. Dugger, 904 F.2d 661, 667
(11th Cir. 1990) (citing Am. Home, 763 F.2d at 1239).
As the Eleventh Circuit has summarized the limited scope of relief that is
Because Mr. Jenkins’s Motion, insofar as it relates to his Atkins claims, merely lists 24
“aspects” without any analysis, and, insofar as it relates to ineffective assistance based on Batson,
merely lists 12 “aspects” without any analysis, the Court finds the Motion deficient as
underdeveloped and clearly insufficient to meet Rule 59(e)’s stringent standard.
available to a litigant under Rule 59(e):
“The only grounds for granting [a Rule 59] motion are
newly-discovered evidence or manifest errors of law or fact.” In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). “[A] Rule 59(e)
motion [cannot be used] to relitigate old matters, raise argument or
present evidence that could have been raised prior to the entry of
judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408
F.3d 757, 763 (11th Cir. 2005).
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007); see also Jacobs v.
Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (“Reconsidering
the merits of a judgment, absent a manifest error of law or fact, is not the purpose
of Rule 59.”); Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (“The purpose
of a Rule 59(e) motion is not to raise an argument that was previously available,
but not pressed.”). “The extremely limited nature of the Rule 59(e) remedy cannot
be overstated. To prevail on a motion to reconsider, ‘[t]he losing party must do
more than show that a grant of the motion might have been warranted; he must
demonstrate a justification for relief so compelling that the court was required to
grant the motion.’ Maradiaga v. United States, 679 F.3d 1286, 1291 (11th
Cir.2012) (citations and internal marks omitted).” Lee v. Thomas, No. CIV.A.
10-0587-WS-M, 2012 WL 3137901, at *2 n.1 (S.D. Ala. Aug. 1, 2012)(Steele, J.).
Mr. Jenkins’s proffered standard is erroneous.
Counsel for Mr. Jenkins, in his reply brief, states “the Commissioner
correctly asserts this Court may grant a motion to correct a manifest error o[f] law
or fact.” (Doc. 66 at 1-2, citing doc. 63 at 5). He next states that “[b]ecause each
issue raised in Mr. Jenkins’s Motion identifies, with specificity, such legal or
factual errors, the Court should grant this motion to reconsider and grant relief for
the reasons set forth in that motion.” (Id. at 2). He then argues that, “[c]ontrary to
the Commissioner’s related assertion ! i.e., that manifest errors of law or fact
constitute ‘the only grounds for granting [a Rule 59(e)] motion,’ ! however, a
motion to reconsider is also the appropriate means to address intervening changes
in law, or where petitioner was denied notice and a fair opportunity to present his
position.” (Id.) (emphasis by italics in original; citations omitted). He concludes
his statement of the appropriate “Standards of Review” (id. at 1) by asserting that,
“[b]ecause Mr. Jenkins’s Rule 59(e) motion addresses manifest errors, intervening
changes in the law, and/or findings and conclusions for which he was denied fair
notice and an opportunity to be heard, this Court should reconsider its decision
and grant relief.” (Id. at 2-3).
Mr. Jenkins is wrong. The authority he cites does not hold as he states it
does, is not binding in this Circuit, or both.
In support of his “intervening changes in law” standard, he cites three cases:
Oliver v. Orange Co., Fla., 456 F. App’x 815, 818 (11th Cir. 2012); Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011); Summit Med. Ctr. Of
Ala., Inc. v. Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003). Oliver is
unpublished, and therefore not binding. Additionally, it is not on point. In Oliver,
the appellant asserted that the district court had violated the law of the case
doctrine.2 Specifically, the Oliver panel said: “there are exceptions to the law of
the case doctrine, namely, where the defendant can show either (1) new evidence;
(2) an intervening change in the law that dictates a different result; or (3) that the
prior decision was clearly erroneous and would result in manifest injustice.”
Oliver, 456 F. App’x at 818.
Burtch3 v. Milberg Factors, Inc., 662 F.3d 212 (3d Cir. 2011) is a decision
of the Third Circuit Court of Appeals. It does contain language consistent with Mr.
Jenkins’s “intervening change in law” standard for motions brought under Rule
59(e).4 However, what Burtch actually concerned was an appeal by a Chapter 7
trustee of a district court's order granting the defendants' motion to dismiss as well
as the district court's order denying leave to amend the complaint. Id. at 216.
Rule 59(e) is not mentioned anywhere in Oliver.
Misspelled “Burch” in Mr. Jenkins’s reply brief, doc. 66.
“Generally, motions for reconsideration under Rule 59(e) must rely on one of the
following three grounds: ‘(1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct clear error of law or prevent manifest injustice.’” Burtch v.
Milberg, 662 F.3d at 230.
Specifically, after the district court dismissed the complaint under 12(b)(6)
(applying “Twiqbal”), the trustee “brought a Motion To Alter or Amend Judgment
under Federal Rules of Procedure 59(e) and 15(a).” Id. at 219. The district court
“denied the Motion, declining to re-open the judgment and denying leave to
amend. The [d]istrict [c]ourt concluded that Rule 59 governs post-judgment
requests for leave to amend and Burtch failed to allege any of the requirements of
Rule 59(e).” Id. at 220. The Third Circuit affirmed on the basis that the proposed
amendment was futile. Id. at 231 (“The Proposed Amended Complaint is futile and
the Rule 59(e) and Rule 15(a) motions were properly denied.”).
Summit Med. Ctr. Of Ala., Inc. v. Riley, 284 F. Supp. 2d 1350 (M.D. Ala.
2003) is the final case cited by Mr. Jenkins for his “intervening changes in law”
standard. Of course, district court cases are not binding authority. Language
consistent with Mr. Jenkins’s standard appears in this case. Specifically, and with
context, that court stated:
The Defendants' Motion to Alter or Amend Order on Summary
Judgment is directed toward the court's conclusion that the Act's
compelled payment provision violates the First Amendment. In
support of their motion, the Defendants assert two arguments. First,
the Defendants contend that the court failed to view the Act's
compelled payment provision within the context of the State's broader
regulatory scheme for abortion. The Defendants conclude that by
taking a narrow view of the Act's context, the court incorrectly
applied United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct.
2334, 150 L.Ed.2d 438 (2001). Second, the Defendants argue that the
court failed to consider whether the State's informational materials are
immune from First Amendment scrutiny under the “government
speech” doctrine. Neither of these two arguments is properly asserted
in a motion for reconsideration, except possibly to the extent that the
first argument is simply that the court “got it wrong.” See Mays v.
United States Postal Service, 122 F.3d 43, 46 (11th Cir.1997) (“This
circuit has held that a motion to reconsider should not be used by the
parties to set forth new theories of law.”). A motion to reconsider is
only available when a party presents the court with evidence of an
intervening change in controlling law, the availability of new
evidence, or the need to correct clear error or manifest injustice. See
Groover, 90 F.Supp.2d at 1256. None of these criteria are present in
this case; therefore, the court concludes that the Defendants' motion is
due to be DENIED.
Id. at 1354-55.
To support his argument that the Rule 59(e) standard is met “where
petitioner was denied notice and a fair opportunity to present his position,” (doc.
66 at 2), Mr. Jenkins relies on three inapposite and non-supportive cases. The first
is “Day v. McDonough, 547 U.S. 198, 210 (2006) (“[B]efore acting on its own
initiative, a court must accord the parties fair notice and an opportunity to present
their positions.”)” (doc. 66 at 2). In Day, the Supreme Court “h[e]ld that district
courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a
state prisoner's habeas petition.” Id. at 209. They then went on to state, “[o]f
course, before acting on its own initiative, a court must accord the parties fair
notice and an opportunity to present their positions.” Id. at 210. That is, in Day,
the district court sua sponte determined facts — specifically, that the date the
parties relied on was not accurate and what the correct date was. The facts had
legal significance, but nonetheless they were facts. Mr. Jenkins seeks to stretch the
Court’s statement in Day to preclude courts from relying on legal authority that is
issued after the parties’ last briefing without first giving the parties notice of the
fact that the court is going to do so and an opportunity for the parties to be heard
about that legal authority. By any stretch of the imagination, Day does not support
the proposition for which Mr. Jenkins offers it.
The second case relied on by Mr. Jenkins for his deprivation of notice and
fair opportunity standard is “Brumfield v. Cain, 135 S. Ct. 2269, 2281-82
(2015)(holding it improper to defer to state fact findings or to ‘hypothetical
reasons state court might have given for denying federal claim where there is ‘no
opinion explaining the reasons relief has been denied.’”)” (doc. 66 at 2). The
quoted words simply do not appear in this decision, at least at the pages
pinpointed by Mr. Jenkins.
The third and final case relied on by Mr. Jenkins for his deprivation of
notice and fair opportunity gloss on the standard applicable to a Rule 59(e) motion
is “Kyles v. Whitley, 514 U.S. 419, 440 (1995) (state findings entitled to no
deference when made under erroneous legal standard)” (doc. 66 at 2). Again, this
pinpoint citation does not contain language consistent with the parenthetical Mr.
Jenkins attributes to it.
Impact of AEDPA on Rule 59(e) Standard
Because this case is subject to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (1996), this Court
must, as an initial matter, consider the potential impact of that Act on the pending
motion. The parties have not addressed this issue, and the Court has not been able
to find any opinion that is binding in this Circuit regarding the impact of that Act
on a Rule 59(e) motion brought in a case subject to the AEDPA. This Court
believes, for the reasons set out below, that the Eleventh Circuit would find that
any “new” issue raised in a Rule 59(e) motion in a habeas case is subject to the
AEDPA’s restrictions on second or successive petitions brought under 28
U.S.C.A. § 2254 and, accordingly, under the AEDPA, this Court lacks jurisdiction
to decide such “new” issues.5
AEDPA’s substantive impact.
As amended by the AEDPA, § 2244(b)(2) provides that
This Court is unaware of any authorization by the Eleventh Circuit Court of Appeals for
Mr. Jenkins to file a “second or successive” habeas petition, as required by the AEDPA. See 28
U.S.C.A. § 2244(b)(3)(A)(“Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”).
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless-(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C.A. § 2244(b)(2) (West).6
Mr. Jenkins does not even argue that he meets this standard. Further, as explained
in subsection 2 below, this Court lacks jurisdiction to determine whether or not he
AEDPA’s procedural impact.
The AEDPA also modified the procedures governing successive collateral
review applications. As a result of these modifications, a prisoner seeking to file a
A separate provision, also enacted as part of the AEDPA, places similar restrictions on
federal prisoners seeking to file successive applications under 28 U.S.C.A. § 2255. See 28
U.S.C.A. § 2255(h).
successive application in the district court must first obtain authorization from the
appropriate court of appeals. See 28 U.S.C.A. § 2244(b)(3). The court of appeals
must examine the application to determine whether it contains any claim that
satisfies § 2244(b)(2) (for state prisoners) or § 2255(h) (for federal prisoners). The
prisoner may bring his claims before a district court only if the court of appeals
authorizes him to do so. Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 166 L.
Ed. 2d 628 (2007) (holding that a petitioner's failure to seek such authorization
from the appropriate appellate court before filing a second or successive habeas
petition deprives the district court of jurisdiction).
Gonzalez v. Crosby
While, as stated above, this Court has been unable to find any decision
binding in this Circuit on the issue of how the AEDPA impacts the standard
applicable to motions brought under Rule 59(e) in habeas cases, at least eight
circuits, and multiple district courts, have addressed this very issue in light of the
Supreme Court’s decision in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641,
162 L.Ed.2d 480 (2005). In Gonzalez, the Supreme Court addressed when a
federal court should construe a petitioner's Rule 60(b) motion as a second or
successive habeas petition subject to the restrictions of AEDPA. Id. at 526, 125
S.Ct. at 2644. That Court explained that the Rules of Civil Procedure apply “in
habeas corpus proceedings under 28 U.S.C. § 2254 only to the extent” that they
are “not inconsistent” with the “statutory provisions and rules” of AEDPA. Id. at
529, 125 S.Ct. at 2646 (internal quotations omitted). The Court also noted that
“[a]s a textual matter, § 2244(b) applies only where the court acts pursuant to a
prisoner's ‘application’ for a writ of habeas corpus,” and that “an ‘application’ for
habeas relief is a filing that contains one or more ‘claims.’” Id. at 530, 125 S.Ct. at
The Supreme Court then held that Rule 60 is “inconsistent” with the
AEDPA and, accordingly, the AEDPA’s restrictions, rather than the general
standard applicable to motions under Rule 60, apply when the motion “seeks
vindication of ... a claim” as that term is used in 28 U.S.C.A. § 2254(b). Id. at 531,
125 S. Ct. at 2647.
As the Supreme Court explained, the relief sought by the motion, not the
label attached to it, is determinative. And a “‘claim’ as used in § 2244(b) is an
asserted federal basis for relief from a state court's judgment of conviction.” Id. at
530, 125 S. Ct. at 2647. Accordingly,
A habeas petitioner's filing that seeks vindication of such a claim is, if
not in substance a “habeas corpus application,” at least similar
enough that failing to subject it to the same requirements would be
“inconsistent with” the statute. 28 U.S.C. § 2254 Rule 11. Using Rule
60(b) to present new claims for relief from a state court's judgment of
conviction!even claims couched in the language of a true Rule 60(b)
motion!circumvents AEDPA's requirement that a new claim be
dismissed unless it relies on either a new rule of constitutional law or
newly discovered facts. § 2244(b)(2). The same is true of a Rule
60(b)(2) motion presenting new evidence in support of a claim
already litigated: Even assuming that reliance on a new factual
predicate causes that motion to escape § 2244(b)(1)'s prohibition of
claims “presented in a prior application,” § 2244(b)(2)(B) requires a
more convincing factual showing than does Rule 60(b). Likewise, a
Rule 60(b) motion based on a purported change in the substantive law
governing the claim could be used to circumvent § 2244(b)(2)(A)'s
dictate that the only new law on which a successive petition may rely
is “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” In addition to the substantive conflict with AEDPA
standards, in each of these three examples use of Rule 60(b) would
impermissibly circumvent the requirement that a successive habeas
petition be precertified by the court of appeals as falling within an
exception to the successive-petition bar. § 2244(b)(3).
In most cases, determining whether a Rule 60(b) motion advances one
or more “claims” will be relatively simple. A motion that seeks to add
a new ground for relief [...] will of course qualify. A motion can also
be said to bring a “claim” if it attacks the federal court's previous
resolution of a claim on the merits,FN4 since alleging that the court
erred in denying habeas relief on the merits is effectively
indistinguishable from alleging that the movant is, under the
substantive provisions of the statutes, entitled to habeas relief. That is
not the case, however, when a Rule 60(b) motion attacks, not the
substance of the federal court's resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings.FN5
FN4. The term “on the merits” has multiple usages. See, e.g., Semtek
Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-503, 121 S.Ct.
1021, 149 L.Ed.2d 32 (2001). We refer here to a determination that
there exist or do not exist grounds entitling a petitioner to habeas
corpus relief under 28 U.S.C. §§ 2254(a) and (d). When a movant
asserts one of those grounds (or asserts that a previous ruling
regarding one of those grounds was in error) he is making a habeas
corpus claim. He is not doing so when he merely asserts that a
previous ruling which precluded a merits determination was in
error-for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.
FN5. Fraud on the federal habeas court is one example of such a
defect. See generally Rodriguez v. Mitchell, 252 F.3d 191, 199 (C.A.2
2001) (a witness's allegedly fraudulent basis for refusing to appear at
a federal habeas hearing “relate[d] to the integrity of the federal
habeas proceeding, not to the integrity of the state criminal trial”). We
note that an attack based on the movant's own conduct, or his habeas
counsel's omissions, see, e.g., supra, at 2647, ordinarily does not go
to the integrity of the proceedings, but in effect asks for a second
chance to have the merits determined favorably.
Id. at 531-32, 125 S. Ct. at 2647-48.
As the Supreme Court further explained,
When no “claim” is presented, there is no basis for contending that
the Rule 60(b) motion should be treated like a habeas corpus
application. If neither the motion itself nor the federal judgment from
which it seeks relief substantively addresses federal grounds for
setting aside the movant's state conviction, allowing the motion to
proceed as denominated creates no inconsistency with the habeas
statute or rules. Petitioner's motion in the present case, which alleges
that the federal courts misapplied the federal statute of limitations set
out in § 2244(d), fits this description.
Id. at 533, 125 S. Ct. at 2648 (footnote omitted).
Although Gonzalez’s holding was expressly limited to Rule 60(b) motions,7
See id. at 529 n. 3, 125 S.Ct. at 2646 (“In this case we consider only the extent to which
Rule 60(b) applies to habeas proceedings under 28 U.S.C. § 2254, which governs federal habeas
at least eight circuit courts of appeal and multiple district courts have considered
whether — and how — to extend Gonzalez's holding to Rule 59(e) motions. The
circuit courts have split.
In a 2016 decision entitled Rishor v. Ferguson, the Ninth Circuit Court of
Appeals summarized the circuit split as follows:
The Fifth, Eighth, Tenth, and Fourth Circuits have concluded that a
Rule 59(e) motion that advances a “claim” as defined by Gonzalez
should be construed as a second or successive habeas petition. See
Williams v. Thaler, 602 F.3d 291, 303–05 (5th Cir.2010) [cert.
denied, 131 S. Ct. 506 (2010)]; Ward v. Norris, 577 F.3d 925, 935
(8th Cir.2009) [cert. denied, 130 S. Ct. 2367 (2010)]; United States v.
Pedraza, 466 F.3d 932, 934 (10th Cir.2006); United States v. Martin,
132 Fed.Appx. 450, 451 (4th Cir.2005) (unpublished). The Third,
Sixth, and Seventh Circuits have held that a Rule 59(e) motion should
never be construed as a second or successive habeas petition, whether
or not it advances a Gonzalez claim. Blystone v. Horn, 664 F.3d 397,
415 (3d Cir.2011); Howard v. United States, 533 F.3d 472, 475–76
(6th Cir.2008); Curry v. United States, 307 F.3d 664, 665 (7th
Rishor v. Ferguson, 822 F.3d 482, 491 (9th Cir. 2016) (footnote omitted).
After considering Gonzalez and the various circuit court opinions, the Ninth
Circuit “departed” from all of the other circuits, and adopted a “hybrid” approach.
Specifically, the Ninth Circuit held that “Gonzalez and § 2244(b) apply to Rule
59(e) motions only when the motion raises entirely new claims.” Id. at 493
relief for prisoners convicted in state court.”).
(emphasis in original).
This Court is persuaded that the Fifth, Eighth, Tenth, and Fourth Circuits
have most faithfully applied Gonzalez’s reasoning and the purpose of the
restrictions contained in the AEDPA in the context of a motion brought under
Rule 59(e). Specifically, if a motion advances a “claim” as defined by Gonzalez, it
should be construed as a second or successive habeas petition. See Williams v.
Thaler, 602 F.3d at 303 (recognizing the “AEDPA's basic premises!avoiding
piecemeal litigation and encouraging petitioners to bring all their substantive
claims in a single filing![and stating that] we believe that Rule 59(e) gives rise to
concerns similar to those the Supreme Court addressed in Gonzalez, and therefore
apply the Gonzalez framework....”). Second, where there is conflict between the
Federal Rules of Civil Procedure and the AEDPA, the AEDPA’s provisions
In Williams v. Thaler, the Fifth Circuit applied the Gonzalez framework to
both the petitioner’s Rule 59(e) motion and to his Rule 60 motion. That Court held
that petitioner’s actual innocence claim asserted in his Rule 59(e) motion sought to
add a new ground for relief and thus was barred by the AEDPA as second or
Respectfully, it appears to this Court that the Third, Sixth, and Seventh Circuits have
constrained the AEDPA by the Federal Rules of Civil Procedure, rather than, as Gonzalez
instructs, the other way around.
successive; but that his Rule 60 motion, which challenged the district court’s
refusals to excuse a federal procedural default or to grant a stay and abeyance were
not “claims” and therefore not barred because they were not challenges to the
substance of the district court’s resolution of his habeas claims but instead were
challenges to a purported defect in the integrity of the district court proceedings.
See also Ward v. Norris, 577 F.3d at 935 (Rule 59(e) motion is second or
successive if it asks for a second chance to have the merits of the underlying state
proceeding determined); United States v. Pedraza, 466 F.3d at 933 (a purported
Rule 59(e) motion that “in substance or effect asserts or reasserts a federal basis
for relief from the petitioner's underlying conviction,” like a Rule 60 motion that
seeks such relief, is actually a second or successive habeas petition); accord
Ochoa v. Sirmons, 485 F.3d 538, 540 (10th Cir. 2007) (describing Pedraza as
“holding post-judgment effort to raise new claim by motion under Rule 59(e) is
likewise equivalent of second or successive petition under § 2244(b)”). See also
United States v. Martin, 132 Fed.Appx. at 451 (unpublished) (determining that the
petitioner’s “self-styled motion under Rule 59(e) is, in substance, a second motion
attacking his conviction and sentence under 28 U.S.C. § 2255” and dismissing it
as second or successive). As all these courts recognized, it is the substance of the
relief sought ! relief from the underlying conviction ! and not the label applied
that should control a court’s analysis.
At the very least, this Court is persuaded that Gonzalez’s instruction applies
equally to motions brought under Rule 59(e) as to those brought under Rule 60
and that, under the AEDPA, no matter how the motion is styled, if it does not
attack “the integrity of the [federal habeas] proceedings, but in effect asks for a
second chance to have the merits determined favorably [by the federal habeas
court],” it raises a claim that is within the scope of the AEDPA's limitations on
second or successive habeas corpus petitions. Id. at 532 n. 5, 125 S.Ct. at 2648.
See also Ward v. Norris, 577 F.3d at 935 (“[W]e conclude that Ward's Rule 60(b)
and Rule 59 motions were improper because they were not based on a procedural
defect, but rather attacked previous habeas counsel's omissions and asked for a
second opportunity to have the merits determined favorably.”); U.S. v. Pedraza,
466 F.3d at 934 (“[In a prior case], we explained that a purported Rule 60(b)
motion that ‘in substance or effect asserts or reasserts a federal basis for relief
from the petitioner's underlying conviction’ is actually a second or successive
habeas petition (or, as in this case, a successive § 2255 motion), requiring
authorization by this court under 28 U.S.C. § 2244(b) in order to proceed in the
district court. Rule 59(e) motions are subject to the same characterization.”)
(citations and footnote omitted); U.S. v. Martin, 132 Fed. Appx. at 451 (“We have
reviewed the record and determine [sic] that [the defendant's] self-styled motion
under Rule 59(e) is, in substance, a second motion attacking his conviction and
sentence under 28 U.S.C. § 2255 (2000).”); accord Ochoa v. Sirmons, 485 F.3d at
540. But see Blystone v. Horn, 664 F.3d 397, 415 n.12 (3d Cir. 2011)
(distinguishing Ward v. Norris and U.S. v. Pedraza on the ground that each case
concerned Rule 59(e) motions to reconsider the dismissal of Rule 60(b) motions
that the district court had determined to be second or successive petitions requiring
court of appeals permission).
Petitioner fails to meet the stringent requirements of Rule 59(e), even
without consideration of the impact of the AEDPA on that Rule. In his initial brief,
he does not even attempt to show that he has met them (as opposed to merely
invoking Rule 59(e)). In his reply brief, he argues that, because this Court was
wrong, its opinion was “manifestly unjust.”9
Further, this Court cannot ignore the impact of the AEDPA on Rule 59(e).
Accordingly, to the extent that he attempts to have this Court consider again his
Inter alia, Mr. Jenkins’s counsel variously refers to this Court’s decision as being based
on “manifest errors of law or fact” (doc. 59 at 2) or just “manifest errors” (doc. 66 at 2), other
times to this Court’s adoption of the state courts’ findings as “clearly erroneous” (doc.59 at 5)
and therefore constituting “manifest injustice” (id.), “clear error” (id. at 17), “unreasonable” (id.
at 41, 48), “erroneous” (id. at 41), “misapplied the Supreme Court’s precedents” (id. at 48, 70),
or “contrary to or unreasonable application [of law]” (id. at 55).
arguments that he is entitled to federal habeas relief from his underlying
conviction, the Motion is a second or successive petition barred from this Court’s
review by the petitioner’s failure to comply with the procedures required by the
AEDPA (and the substantive showing required under that Act). To the extent that
he attempts to raise a new issue, those attempts also fail as second or successive.
The only argument that petitioner raises that falls outside of the AEDPA as
interpreted by the Supreme Court and the Fourth, Fifth, Eighth, and Tenth Circuit
Courts of Appeals is his argument that this Court violated his due process by
considering cases that were decided after his last brief was filed. The Court finds
that this argument is not second or successive because it is not a “claim,” rather, it
asserts a failure of integrity in this Court’s handling of Mr. Jenkins’s habeas
petition. However, as explained in Section II.A.2 above, Mr. Jenkins relies on Day
v. McDonough, 547 U.S. at 210, for this argument and that case fails to support it.
This Court also finds this argument to be contrary to the need for courts to issue
decisions that accurately reflect the law at the time the decision is entered. As
such, this argument simply makes no sense. The Court rejects it.10,11
Basically, this argument stands for the proposition that, in ruling on a matter, a court
may only rely on cases decided before the parties filed their briefs, or the court has deprived the
parties of due process.
He also fails to state what he would have said if given the opportunity, much less why
those statements would have made a difference.
Further, nothing prevented Mr. Jenkins from advising this Court at any time
of supplemental authority that he believed needed to be addressed. Indeed, he did
so when he filed his Notice of Supplemental Authority (doc. 70) while this Rule
59(e) Motion was pending and after all briefing on it had concluded.
To prevail on a Rule 59(e) motion, “[t]he losing party must do more than
show that a grant of the motion might have been warranted; he must demonstrate a
justification for relief so compelling that the district court was required to grant
the motion.” Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir. 2012)
(citations and internal marks omitted). Notwithstanding petitioner’s argument that
Rule 59(e)’s “purpose is to allow the district court to correct its own errors,
sparing the parties and appellate courts the burden of unnecessary appellate
proceedings,” (doc. 59 at 1), Rule 59(e) motions “are neither appeal substitutes nor
a ‘dry run’ to test arguments in anticipation of a forthcoming appeal.” Lee v.
Thomas, 2012 WL 3137901, at *2 (S.D. Ala. Aug. 1, 2012) (Steele, J.). Like the
movant in Lee, Jenkins “pays lip service (but no more) to [Rule 59(e)’s] stringent
legal standard by framing his arguments in terms of purported ‘manifest error’ by
this Court. By simply invoking the talismanic phrase ‘manifest error’ whenever he
disagrees with the [August 31 Memorandum Opinion’s] reasoning or conclusions,
[Mr. Jenkins] apparently believes that he is entitled to demand reconsideration of
anything and everything under Rule 59(e). [Mr. Jenkins] is mistaken.” Id.
To the extent that the motion seeks to relitigate old matters, it is due to be
DENIED under the general standard applicable to Rule 59(e) motions. See Section
II.A. above. Although Mr. Jenkins’s counsel seeks to invoke “manifest injustice,”
he fails to set out any new facts or binding authority holding that denial of habeas
relief (or a certificate of appealability) under analogous facts warrants granting a
motion under Rule 59(e) in a habeas case.
To the extent that the motion seeks to raise new issues, it is a second or
successive habeas petition. Accordingly, this Court lacks jurisdiction over it and it
is due to be DISMISSED.12 See Section II.B. above.
To the extent that the motion argues that this Court denied Mr. Jenkins
notice and a fair opportunity to be heard, the motion is due to be DENIED. See
Section II.A. above.
CERTIFICATE OF APPEALABILITY
Accordingly, this Court does not reach the impact on Mr. Jenkins’s Atkins claim of
Moore v. Texas, 581 U.S. __, 137 S. Ct. 1039 (2017) (cited by Mr. Jenkins’s counsel in his
Notice of Supplemental Authority to Motion To Alter or Amend Final Judgment (doc. 70)) or of
Carroll v. Alabama, __ S. Ct. __, 2017 WL 416125 (May 1, 2017) (cited by Mr. Jenkins’s
counsel in his second Notice of Supplemental Authority to Motion To Alter or Amend Final
Judgment (doc. 71)).
If Mr. Jenkins seeks issuance of a certificate of appealability pursuant to 28
U.S.C. § 2253(c)(1), the undersigned opines that a certificate of appealability is
not warranted. That such a certificate is required is the law of this Circuit. See
Hamilton v. Sec'y, Florida Dep't of Corr., 793 F.3d 1261, 1265 (11th Cir. 2015),
cert. denied sub nom. Hamilton v. Jones, 136 S. Ct. 1661, 194 L. Ed. 2d 774
(2016), reh'g denied, 137 S. Ct. 287, 196 L. Ed. 2d 207 (2016) (holding that
“[b]inding precedent ... establishes that a COA is required before a habeas
petitioner may appeal the denial of a Rule 59(e) motion.”)
Where, as here, the district court’s decisions relied in part on
the Federal Rules of Civil Procedure, the § 2254 petitioner must make
both a substantive and a procedural showing. He must show: (1) “that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right,” and (2) “that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.”
Hamilton v. Sec'y, Florida Dep't of Corr., 793 F.3d at 1264 (internal citations
omitted). Upon consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now ORDERED:
1. Mr. Jenkins’s Rule 59(e) Motion To Alter or Amend this Court’s Final
Judgment (doc. 59) is DISMISSED WITHOUT PREJUDICE IN PART and
otherwise is DENIED.
2. If Mr. Jenkins appeals the denial of his Rule 59(e) Motion, this Court
DENIES a certificate of appealability. Because this Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from the
pending motions report any motion to proceed on appeal as a pauper that may be
filed in this case. Such termination shall serve as a denial of the motion.
DONE and ORDERED this the 10th day of May, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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