Charest v. Mitchem

Filing 86

Amended Order ADOPTING portions & DECLINING TO ADOPT portions of 63 REPORT AND RECOMMENDATION. 1 Petition for Writ of Habeas Corpus is DENIED as set out. 75 MOTION for Reconsideration requesting to alter, vacate, or amend its 71 Judgment is DENIED as MOOT as set out, as is 76 MOTION to Stay Appeal. Requests contained in 77 Reply Brief are DENIED as set out. 78 Emergency MOTION for Copies & for Recusal is DENIED as set out. Signed by Judge Callie V. S. Granade on 11/14/2013. (copy mailed to Pet on 11/14/13) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK JOSEPH CHAREST,
AIS 182262
Petitioner,
vs.
BILLY MITCHUM,
Respondent.

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Civil Action No. 10-0067-CG-C

AMENDED ORDER
This matter is before the court on the State’s objection (Doc. 72) to the
magistrate judge’s report and recommendation (Doc. 63). Also before the
court is the pro se reply brief (Doc. 77) filed by the petitioner, Patrick Joseph
Charest (“Charest”), as well as his pro se “emergency motion” (Doc. 78) and
his affidavit for a motion for permission to appeal in forma pauperis (Doc.
80).
The magistrate judge summarized the factual background of the case
at length in his report and recommendation and the court will not duplicate
those efforts here. See Doc. 63 at 3-33. The court previously adopted the
magistrate judge’s report and recommendation on April 10, 2013 (Doc. 70),
and issued a judgment dismissing Charest’s request for habeas corpus relief
as an unconscionable abuse of the writ and as time-barred (Doc. 71). Two
days later, the State filed an objection to the report and recommendation.
(Doc. 72). In order to consider the State’s objection, the court vacated its

order and judgment on April 15. (Doc. 73).
Having now closely considered the State’s objection to the report and
recommendation, the finds that it is well taken and declines to adopt that
portion of the Report and Recommendation that concludes that the state
court’s August 2005 Order which modified Charest’s sentence constituted a
“new judgment”, as set forth below. The court also finds that Charest’s
multiple motions before the court are due to be DENIED, or are MOOT, as
set forth below.
I. THE STATE’S OBJECTION (DOC. 72)
At issue is the Baldwin County Circuit Court’s August 12, 2005, Order
(the “August 2005 Order”) which modified Charest’s two consecutive life
terms so that they ran concurrently. Doc. 59-1. The magistrate judge
concluded that this was a “new judgment” within the scope of the United
States Supreme Court’s holding in Magwood v. Patterson, 130 S.Ct. 2788
(2010), and consequently, that Charest could attack his unaltered, underlying
convictions pursuant to Magwood and Campbell v. Secretary for the Dept. of
Corrections, 447 Fed. Appx. 25, 26-27 (11th Cir. Oct. 13, 2011). See Doc. 63
at 36-38.
The State contends that the magistrate judge was incorrect, and
argues that, pursuant to Alabama Rule of Criminal Procedure 26.12(c)1, the

Ala.R.Crim.P. 26.12(c) states that “[t]he court may at any time by a nunc
pro tunc order provide that previously imposed consecutive sentences run
concurrently.”
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Circuit Court’s modification of Charest’s sentences was a “purely
discretionary judicial change in the manner in which Charest’s sentences
were to be executed and served.” Id. at 4.
In the report and recommendation, the magistrate judge relied to a
large extent upon the Eleventh Circuit’s holdings in Murphy v. United
States, 634 F.3d 1303, 1311 (11th Cir. 2011), and Ferreira v. Secretary, Dept.
of Corrections, 494 F.3d 1286, 1292–93 (11th Cir. 2007). In Murphy, the
Eleventh Circuit considered whether granting a sentence reduction to a
federal defendant pursuant to Federal Rule of Criminal Procedure 35(b)
constituted a resentencing that re-started the AEDPA “time clock,”2 thus
allowing the defendant to collaterally attack his original conviction and
sentence. Murphy, 634 F.3d at 1306. The Eleventh Circuit defined the term
“judgment” as “ the underlying conviction and [the] most recent sentence that
authorizes the petitioner's current detention.” Id. at 1311 (quotation
omitted)(emphasis in original). The court stated further that “we reasoned in
Ferreira[] that … a judgment is defined as both the conviction and the
sentence …[and therefore] when a defendant is resentenced, the defendant
becomes confined under a new judgment[.]”. Id. at 1311.
The magistrate judge pointed to this language in his report and
recommendation when he found that the August 2005 Order was the “most
recent” sentence authorizing Charest’s detention and concluding that it was a
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See Pub.L 104-132, § 104, 110 Stat. 1214, 1218-1219.
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“new judgment.” Doc. 63 at 36-38. However, Murphy and Ferreira are not
support this conclusion as well as the report and recommendation suggest.
For one thing, Ferreira is distinguishable from the instant case because it
dealt with a defendant who was resentenced after his original sentence was
declared invalid. Murphy, 634 F.3d at 1313. In this case, there was no such
invalidation of Charest’s original sentence; rather, it was modified pursuant
to an agreement that Charest struck with the State. Doc. 63 at 23.
Murphy is likewise a poor fit for a finding of a new judgment because
in that case, the Eleventh Circuit ultimately ruled that the reduction of the
defendant’s sentence pursuant to Fed.R.Crim.P. 35(b) did not comprise a
genuine resentencing, nor give rise to a new judgment. Murphy, 634 F.3d at
1313. The Eleventh Circuit instead held that a Rule 35(b) motion is merely a
“plea for leniency, a matter of executive and judicial grace.” Id. (quotation
marks omitted). The discussion of Rule 35(b) in Murphy is actually a
reasonable counterpart to the State’s invocation of Ala.R.Crim.P. 26.12(c),
which allows the trial court to modify consecutive sentences and make them
run concurrently. See Ala.R.Crim.P. 26.12(c). Although the state rule
provides greater discretion to Alabama courts than the federal rule does to
federal courts,3 both rules are procedural avenues by which a court may

For example, Fed.R.Crim.P. 35(b) only authorizes a reduction in a
defendant’s sentence when two conditions are met: (1) the defendant must
render substantial assistance to the government in the investigation or
prosecution of another person; and (2) the government must decide to file a
Rule 35(b) motion. Murphy at 1313.
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amend a defendant’s sentence.
Accordingly, the court DECLINES TO ADOPT that portion of the
magistrate judge’s report and recommendation that discusses and concludes
that the August 2005 Order was a “new judgment.” Instead, the court finds
that where, as here, the original sentence has not been declared invalid, no
genuine resentencing has taken place. It logically follows that, because the
August 2005 Order is not a new or intervening judgment, then Charest is not
entitled to challenge his unaltered, underlying convictions for rape because
the Court of Appeals has denied permission to file a second or successive
petition. (See Doc. 9, Exh H, at 14). Campbell v. Secretary for the Dept. of
Corrections, 447 Fed. Appx. 25, 26-27 (11th Cir. Oct. 13, 2011) (“Magwood
permits a petitioner who received an intervening judgment to attack the
unaltered prior conviction.”).
In addition, the court does adopt , as an alternate holding, (should the
Court of Appeals find that the resentencing constituted an intervening
judgment), the discussion and conclusions in the Report and
Recommendation finding that the writ is due to be denied because Charest
has abused of the writ and dismissed as time-barred. Accordingly, Charest’s
request for habeas corpus relief is hereby DENIED.
II. CHAREST’S MOTIONS AND VARIOUS FILINGS
On April 22, 2013, Charest filed a Rule 59(e) motion for
reconsideration (Doc. 75) requesting that the court alter, vacate, or amend its

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judgment of April 10. However, as discussed above, the court had previously
vacated the order one week earlier, on April 15 (Doc. 73). Therefore,
Charest’s motion is DENIED as MOOT, as is his motion to stay appeal
pending adjudication of his Rule 59 motion (Doc. 76).
On April 24, 2013, Charest filed “cross-objections” – essentially a reply
brief -- in response to the State’s objection to the magistrate judge’s report
and recommendation. Doc. 77. As part of his “cross-objections,” Charest
requested a hearing before the court regarding certain “factual disputes –
questions of law – mixed with federal law,” or, alternatively, requested that
the court grant him certain “relief” that would allow him to return to Baldwin
County for a Rule 32 hearing, or simply order a new trial. Doc. 77 at 32. In
light of the court’s determination, supra, these requests are DENIED.
Charest also filed an emergency motion, in which he (1) argues that he had
no prior knowledge of certain filings by the State and his own appellate
counsel in the instant habeas appeal; (2) seeks copies of various docket filings
dating to December 2012 and January 2013; and (3) requests that the district
court recuse itself. (Doc. 78). The request to recuse is based solely on this
court’s earlier rulings in the instant case. As a general rule, a judge's rulings
in a case are not valid grounds for recusal. Loranger v. Stierheim, 10 F.3d
776, 780 (11th Cir. 1994). Petitioner cites no other grounds for recusal, and
the request to recuse is therefore denied. Charest should request copies of
documents directly from Mr. Helmsing for the period of time that Mr.

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Helmsing served as Charest’s appellate counsel. If the Clerk has not already
done so, it is hereby directed to send Charest copies of documents filed after
Mr. Helmsing withdrew as appellate counsel. Charest’s emergency motion
(Doc. 78) is otherwise DENIED.
DONE and ORDERED this 14th day of November, 2013.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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