Maye v. USA

Filing 5

ORDER: Petitioner's Motion to Alter or Amend Order or Judgment (CV Dkt. 4) is DENIED. The Court declines to issue a certificate of appealability because Petitioner has failed to make a substantial showing of the denial of a constitutional rig ht as required by 28 U.S.C. § 2253(c)(2). The Court also declines to allow Petitioner to proceed in forma pauperis on appeal because such an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Signed by Judge James S. Moody, Jr on 8/8/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CHARLES DANIEL MAYE,
Petitioner,
v.

Case No. 8:13-CV-3104-T-30EAJ
Crim Case No. 8:04-CR-321-T-30EAJ

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
Before the Court is Petitioner’s Motion to Alter or Amend Order or Judgment filed
pursuant to Rule 59(e), Federal Rules of Civil Procedure (CV Dkt. 4). Petitioner previously
filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV
Dkt. 1). The Court entered an order dismissing Petitioner’s motion, without prejudice, as a
successive § 2255 motion (CV Dkt. 3).
Petitioner now asks the Court to reconsider this order. A motion filed under Federal
Rule of Civil Procedure 59(e) seeking to alter or amend a judgment must be filed no later
than twenty-eight days after entry of the judgment. Petitioner’s motion is timely under Rule
59(e). “The only grounds for granting [a Rule 59] motion are newly-discovered evidence or
manifest errors of law or fact.” Arthur v. King, 500 F. 3d 1335, 1343 (11th Cir. 2007)
(quoting In re Kellogg, 197 F. 3d 1116, 1119 (11th Cir. 1999)).

The Court’s order dismissing Petitioner’s § 2255 motion concluded that the motion
was successive. In his present motion, Petitioner argues that his § 2255 motion was not
successive because he could not prove his claim of prosecutorial misconduct without the
“Shackelford Letter,” which was not available to him until after the denial of his first § 2255
motion.1
Petitioner does not provide any new evidence. Rather, he essentially reargues that
which the Court previously considered and denied, namely that Petitioner’s § 2255 motion
was not successive because he could not prove his claim of prosecutorial misconduct without
the “Shackelford Letter” (see CV Dkt. 3 at pp. 3-5). A Rule 59(e) motion may not be used
to relitigate old matters or to raise arguments or present evidence that were available prior
to the entry of judgment. Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 759
(11th Cir. 2005).
Moreover, Petitioner’s §2255 motion was successive because the prosecutorial
misconduct claim, and the basis for that claim, the 2005 “Shackelford Letter,” existed before
the proceedings on his initial § 2255 motion concluded in 2008, even if that letter was not
available to and discovered by Petitioner until after the conclusion of those proceedings. See
Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011) (“‘[C]laims based on a factual
predicate not previously discoverable are successive,’ but ‘[i]f. . .the purported defect did not
arise, or the claim did not ripen, until after the conclusion of the previous petition, the later
1

The “Shackelford Letter” is a June 17, 2005 letter from Kelly Shackelford to then Assistant United States
Attorney Jeffrey Del Fuoco (see Maye v. United States, Case no. 8:10-cv-2327-T-30TBM at Dkt. #36-1, docket pp.
10-21).

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petition based on that defect may be non-successive.’”) (quoting Leal Garcia v. Quaterman,
573 F.3d 214, 221-22 (5th Cir. 2009)) (emphasis in original). Accordingly, Petitioner has
not demonstrated a manifest error of law or fact that would entitle him to relief.
ACCORDINGLY, the Court ORDERS that:
1.

Petitioner’s Motion to Alter or Amend Order or Judgment (CV Dkt. 4) is

DENIED.
2.

The Court declines to issue a certificate of appealability 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). The Court also declines to allow Petitioner to proceed in forma
pauperis on appeal because such an appeal would not be taken in good faith. See 28 U.S.C.
§ 1915(a)(3).
DONE and ORDERED in Tampa, Florida on August 8, 2014.

SA:sfc
Copy furnished to:
All Parties/Counsel of Record

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