CLAY v. BLANCHARD

Filing 82

ORDER denying 78 Motion for Leave to Appeal in forma pauperis; denying 79 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/7/2018. (esl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KENNETH CLAY,

:
:
Petitioner,
:
:
v.
:
:
:
JODY DILLARD,
:
Chief Probation Officer,
:
:
Respondent.
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___________________________ _____ :

No. 4:17-cv-00105-CDL-MSH

ORDER
Petitioner Kenneth Clay has filed two motions for leave to appeal in forma pauperis
in this action. Mot. for Leave to Appeal In Forma Pauperis, Oct. 15, 2018, ECF No. 78;
Mot. for Leave to Appeal In Forma Pauperis, Nov. 6, 2018, ECF No. 79. Petitioner has
also filed a document (ECF No. 75), which the United States Court of Appeals for the
Eleventh Circuit has construed as a tolling motion for reconsideration.

See Clay v.

Dillard, Case No. 18-14253-E (11th Cir. Nov. 1, 2018).
With regard to the construed motion for reconsideration, under the Local Rules,
motions for reconsideration are not to “be filed as a matter of routine practice” and
generally must be filed within fourteen days of entry of the order for which reconsideration
is sought. M.D. Ga. Local R. 7.6. Moreover, reconsideration is only appropriate when
“(1) there has been an intervening change in the law; (2) new and previously unavailable
evidence has been discovered through the exercise of due diligence; or (3) the court made
a clear error of law.” Fla. Found. Seed Producers, Inc. v. Ga. Farms Servs., Inc., 977 F.

Supp. 2d 1336, 1337 (M.D. Ga. 2013).
Here, Petitioner objects that the United States Magistrate Judge closed the case
without considering Petitioner’s motions for reconsideration. Brief 1, Oct. 18, 2018, ECF
No. 75. Petitioner’s motions for reconsideration (ECF Nos. 62 and 631), however, were
construed as objections to the Magistrate Judge’s Report and Recommendation and were
considered by this Court in deciding whether to adopt the Magistrate Judge’s Report and
Recommendation and dismiss the petition. See Order, Sept. 28, 2018, ECF No. 67 (“The
Court considered Petitioner’s objections to the Report and Recommendation, which the
Petitioner describes as a motion for reconsideration, and finds that they lack merit.”).
Thus, to the extent that Petitioner is seeking reconsideration through ECF No. 75, he has
not identified any basis for reconsideration and that motion is DENIED.
With regard to Petitioner’s motions for leave to appeal in forma pauperis, the United
States Magistrate Judge found that Petitioner had not made a substantial showing of the
denial of a constitutional right and recommended that this Court deny a certificate of
appealability in its final order. R. & R. 7, ECF No. 61. Thereafter, this Court adopted
the Magistrate Judge’s Report and Recommendation, including the recommendation that a
certificate of appealability be denied. Order Adopting R. & R., ECF No. 67.
Petitioner attached to his first motion for leave to appeal in forma pauperis (ECF
No. 78) a “motion for reconsideration,” which presents due process and equal protection
arguments identical to those raised in his earlier motions for reconsideration. As noted

1

These two documents raised identical issues, and thus, they are addressed together.
2

above, this Court considered those arguments and found that they lack merit. To the
extent that Petitioner presents them to ask the Court to reconsider its previous order,
Petitioner has again not identified a basis for reconsideration. See Fla. Found. Seed
Producers, 977 F. Supp. 2d at 1337. Likewise, Petitioner does not identify any basis in
his second motion for leave to appeal in forma pauperis (ECF No. 79) for granting a
certificate of appealability. Accordingly, a certificate of appealability has been, and
remains, DENIED.
Finally, because Petitioner has been denied a certificate of appealability, his motions
to proceed in forma pauperis on appeal are also DENIED as MOOT.
SO ORDERED, this 7th day of November, 2018.

s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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