McGough v. Secretary, Department of Corrections et al

Filing 18

ORDER: Petitioner's construed Rule 59(e) motion 17 is DENIED. The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts becausePetitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). And, because Petitioner is not entitled to a certificate of appealability, Petitioner is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 11/21/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHAEL McGOUGH,
Petitioner,
-vs-

Case No. 8:13-CV-1083-T-30EAJ

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________/
ORDER
Before the Court is Petitioner’s Motion for Order Authorizing District Court to
Consider Petition Under the Martinez Rule (Dkt. 18) which the Court construes as a motion
to alter or amend the judgment pursuant to Rule 59(e), Fed. R. Civ. P. The motion seeks
relief from the Court’s October 29, 2013 Order dismissing as untimely Petitioner’s 28 U.S.C.
§ 2254 petition for writ of habeas corpus (Dkt. 16). Petitioner timely filed the motion on
November 17, 2013.1
The decision to alter or amend a judgment under Rule 59(e) “is committed to the
sound discretion of the district judge.” Am. Home Assur. Co. v. Glenn Estess & Assocs., 763
F.2d 1237,1238-39 (11th Cir.1985). “The only grounds for granting [a Rule 59(e)] motion
are newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d

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A Rule 59(e) motion “must be filed no later than 28 days after the entry of the judgment.” Rule 59(e), Fed.

R. Civ. P.

1335, 1343 (11th Cir.2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999)).
A party seeking reconsideration must “set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Cover v. Wal-Mart Stores, Inc., 148 F.R.D.
294, 294 (M.D. Fla. 1993).
The Court has carefully reviewed Petitioner’s arguments, but finds that these
arguments are unsupported by facts or law of a “strongly convincing nature.” Moreover, the
Court is not convinced that reconsideration of the October 29, 2013 Order is necessary to
correct a clear error or to prevent manifest injustice.
Accordingly, the Court ORDERS that:
1.

Petitioner’s construed Rule 59(e) motion (Dkt. 17) is DENIED.

2.

The Court declines to issue a certificate of appealability pursuant to Rule 11(a)

of the Rules Governing Section 2254 Cases in the United States District Courts because
Petitioner has failed to make a substantial showing of the denial of a constitutional right as
required by 28 U.S.C. § 2253(c)(2). And, because Petitioner is not entitled to a certificate
of appealability, Petitioner is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on November 21, 2013.

SA:sfc
Copy to: Petitioner pro se
Counsel of Record

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