Tomlin v. Patterson

Filing 61

ORDER DISMISSING Pet's 55 Motion to Reconsider as set out. Signed by Senior Judge Callie V. S. Granade on 2/4/19. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PHILLIP WAYNE TOMLIN,
Petitioner,
vs.
TONY PATTERSON, Warden,
Holman Correctional Facility,
Respondent.

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) CIVIL ACTION NO. 10-120-CG-B
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ORDER
This case is before the Court on Petitioner Phillip Wayne Tomlin’s
(“Petitioner”) motion to reconsider pursuant to FED. R. CIV. P. 59 and 60. (Doc. 55).
For the reasons explained below, the Court finds it does not have jurisdiction to
consider Petitioner’s motion to reconsider. Accordingly, Petitioner’s motion will be
dismissed.
I. Procedural Background
Petitioner’s original habeas corpus petition raised thirty claims challenging
his conviction and sentence for the murder of two people on January 2, 1977. (Doc.
1). This Court previously denied Petitioner habeas relief (Doc. 32) but failed to take
into account Petitioner’s motion to supplement claim number 30 in light of
Magwood v. Warden, Ala. Dept. of Corrections, 664 F.3d 1340 (2011). (Doc. 22).
Petitioner appealed, and the Eleventh Circuit Court of Appeals vacated this Court’s

order without prejudice to resolve the issues Petitioner raised in Claim 30. (Doc.
40). The Court of Appeals specifically directed this Court “to (1) determine whether
the ex post facto issues raised in Tomlin’s § 2254 reply brief were properly before
the judge; (2) if so, decide those issues; (3) issue a decision on Tomlin’s motion to
supplement his § 2254 petition; and (4) if the judge grants that motion, decide the
ex post facto and due process, fair warning claims raised in Tomlin’s proposed
supplement.” (Doc. 40, pp. 5–6). On remand, this Court granted Petitioner’s Motion
for Supplemental Pleading but denied Petitioner’s habeas corpus petition as to his
ex post facto and due process, fair-warning claim. Petitioner’s current motion seeks
reconsideration of his claim pursuant to Rules 59(e) and 60(b).
II. Analysis
Before the Court can address the merits of Petitioner’s motion, the Court
must determine whether it has jurisdiction to consider the motion at all. See Cadet
v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (Federal courts are “obligated to
inquire into subject-matter jurisdiction sua sponte whenever it may be lacking.”).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted
to ensure greater finality of state and federal court judgments in criminal cases. To
that end, AEDPA greatly restricts the filing of second or successive petitions for
relief under § 2254 or § 2255. See Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003) (without appellate authorization, district court lacks jurisdiction to
consider a second or successive petition); 28 U.S.C. § 2244(b)(3)(A). In the § 2254
and § 2255 context, the Court must be wary of an unauthorized attempt at a second
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or successive petition disguised as a Rule 59(e) or 60(b) motion. The Eleventh
Circuit has held that a Rule 60(b) motion is foreclosed if it (1) “seeks to add a new
ground of relief;” or (2) “attacks the federal court's previous resolution of a claim on
the merits.” Williams v. Chatman, 510 F.3d 1290, 1293–94 (11th Cir. 2007) (citing
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). The use of the term “on the merits” is
explained as follows:
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 (b). 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.
Williams, 510 F.3d at 1294 (quoting Gonzalez, 545 U.S. 524 at 532 n. 4). The
Eleventh Circuit specifically addressed Rule 60(b) motions in Williams v. Chatman,
but “the Southern District of Alabama has held that the ‘jurisdictional prohibition
on Rule 60(b) motions in the habeas context applies with equal force to Rule 59(e)
motions.’” Williams v. United States, 2017 WL 3613042, at *2 (S.D. Ala. Aug. 22,
2017) (quoting Aird v. United States, 339 F.Supp.2d 1305, 1311 (S.D. Ala. 2004)).
Petitioner’s grounds for reconsideration are that this Court was clearly
erroneous in its interpretation of the 1975 Alabama Death Penalty Act and the
Court failed to address whether the state court’s decision is contrary to Rogers v.
Tennessee, 532 U.S. 451 (2001). Petitioner contends that the Court should interpret
the statute to prohibit punishment of life imprisonment without parole in his case
and that if the Court properly followed the Rogers standard it would conclude that
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Petitioner was entitled to relief. These arguments clearly go to the merits of
Petitioner’s ex post facto and due process, fair warning claim. Accordingly, this
Court lacks jurisdiction to consider Petitioner’s Rule 59(e) and 60(b) motion.
CONCLUSION
For the foregoing reasons, Petitioner’s motion to reconsider pursuant to FED.
R. CIV. P. 59 and 60 (Doc. 55), is DISMISSED.
DONE and ORDERED this 4th day of February, 2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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