Slakman v. Johnson
Filing
28
ORDER AND OPINION denying 27 Petitioner's Motion to Amend Judgment and denying a Certificate of Appealability. Signed by Judge Julie E. Carnes on 3/20/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BARRY S. SLAKMAN,
Petitioner,
:
:
:
:
:
:
:
v.
GLEN JOHNSON,
Respondent.
HABEAS CORPUS
28 U.S.C. § 2254
CIVIL ACTION NO.
1:11-cv-2342-JEC-JFK
ORDER AND OPINION
On October 1, 2012, the Court entered judgment on its Order and
Opinion
that
adopted
the
Magistrate
Judge’s
Report
and
Recommendation, dismissed this federal habeas corpus petition as
untimely, and denied a certificate of appealability (“COA”).
26].)
The matter is now before the Court on petitioner’s motion to
amend judgment, brought under FED. R. CIV. P. 59(e).1
I.
([25,
([27].)
DISCUSSION
On July 14, 2011, petitioner filed this federal habeas corpus
petition challenging his November 15, 2001 Fulton County convictions.
(See [20] at 2-3.)
Respondent moved that the petition be dismissed
as untimely because it was not filed within the one-year limitations
period for federal habeas corpus petitions.
(See id.)
The Magistrate Judge found, among other things, that the record
before the Court did not show that petitioner was entitled to an
actual innocence exception to the limitations period and recommended
1
Petitioner’s Rule 59(e) motion was timely filed within twentyeight days of the entry of judgment. See FED. R. CIV. P. 59(e).
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that respondent’s motion to dismiss be granted.
([20] at 6, 8.)
Petitioner objected and asserted that the Magistrate Judge’s failure
to apply the actual innocence exception was error because (1) he had
“impl[ied]” actual innocence based on his federal grounds 4(c) and
(d)
and
5(b),2
(2)
“evidence
supporting
said
grounds
would
be
exculpatory scientific evidence/testimony which [was] not argued at
. . . trial,”3 and (3) he had not yet filed his brief which “would
substantiate the merits” of his grounds for relief that show actual
innocence.
([22] at 2, 12-14 (emphasis added).)
The Court determined that the Magistrate Judge had correctly
determined that the record did not warrant application of the actual
innocence exception.
([25] at 12.)
The Court, among other things,
found that petitioner chiefly referred to admitted state evidence and
that he had not identified any new reliable evidence.
(Id.)
The
2
Petitioner in his federal ground 4(c) asserted that counsel
was ineffective for failing to “put into evidence” or argue that
admitted state evidence--hydrodynamics report, autopsy report,
supplemental offense report, and evidence from “shurgard storage”-established an alibi for Petitioner.
([1], Attach. at 5.)
In
federal ground 4(d), Petitioner argued that counsel was ineffective
for failing to argue that it would have been impossible for
Petitioner to have committed the crime “based solely on [the] State’s
admitted evidence,” trial testimony, and investigative reports. (Id.
at 6.) In federal ground 5(b), Petitioner asserted that appellate
counsel was ineffective for failing to raise on appeal ineffective
assistance of trial counsel on the above matters. (Id. at 7.)
3
Petitioner did not clearly describe the evidence to which he
referred.
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Court overruled petitioner’s objections and dismissed this action.
(Id. at 12-13.)
Petitioner seeks reconsideration.
([27].)
Petitioner asserts
that the Court clearly erred in finding that he is not entitled to
the actual innocence exception. (Id. at 1.) Petitioner contends (1)
that his counsel could have presented known evidence that would have
established an absolute alibi for him, (2) that his state habeas
pleadings (which the state did not submit) defined the actualinnocence evidence and he should have had an opportunity to develop
his
claim
at
a
federal
hearing,
and
(3)
that
“the
evidence
substantiating [petitioner’s] actual innocence . . . is all state’s
evidence.
What did not happen at trial and was not presented to the
jury
how
was
innocent.”4
that
evidence
proved
[petitioner]
was
factually
(Id. at 2-3.)
The grounds, under Rule 59(e), for reconsidering a judgment are
"an intervening change in controlling law, the availability of new
evidence, or the need to correct clear error or prevent manifest
4
That the state’s trial evidence could have been presented in
a different manner does not satisfy the standard for actual
innocence.
See Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d
1000, 1011 (11th Cir. 2012)(“[T]he alleged exception for . . .
untimeliness would require the petitioner (1) to present ‘new
reliable evidence . . . that was not presented at trial,’ and (2) to
show ‘that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt’ in light of
the new evidence.” (citations omitted)), cert. denied, 133 S. Ct. 351
(2012).
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injustice."
United States v. Battle, 272 F. Supp. 2d 1354, 1357
(N.D. Ga. 2003).
A Rule 59(e) motion “is not to serve as a vehicle
to relitigate old matters or present the case under a new legal
theory . . . [or] to give the moving party another bite at the apple
by permitting the arguing of issues and procedures that could and
should have been raised prior to judgment.”
Mincey v. Head, 206 F.3d
1106, 1137 n.69 (11th Cir. 2000)(alteration in original)(citation and
internal quotation marks omitted).
Petitioner presents nothing that he could not have presented
before the Magistrate Judge or in his objections or that he has not
already presented.
Finding nothing that warrants a retreat from the
Court’s previous decision, the motion to amend judgment shall be
denied.
II.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases,
“[t]he
district
court
must
issue
or
deny
a
certificate
of
appealability when it enters a final order adverse to the applicant.
. . . If the court issues a certificate, the court must state the
specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).”
This Rule applies to the denial of a Rule
59(e) motion in § 2254 proceedings.
Perez v. Sec’y, Fla. Dep’t of
Corr., __ F.3d __, No. 11-15280, 2013 WL 828001 (11th Cir. Feb. 13,
2013). Section 2253(c)(2) states that a certificate of appealability
4
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may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.”
To satisfy that standard, a
petitioner must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Lott v. Att’y
Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010)(quoting Miller-El v.
Cockrell,
537
U.S.
322,
336
(2003))(internal
quotation
marks
omitted).
Based on the discussion above, a COA is unwarranted. Petitioner
is advised that he “may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.”
Rule 11(a), Rules Governing § 2254 Cases in the
United States District Courts.
III. CONCLUSION
For the reasons stated above, IT IS ORDERED that petitioner’s
motion to amend judgment [27], brought under FED. R. CIV. P. 59(e),
is DENIED and that a COA is DENIED.
IT IS SO ORDERED, this 20th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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