Morris v. Carter
Filing
21
OPINION AND ORDER that Petitioner Issac Morris's Motion to Alter or Amend Judgment Pursuant to Federal Rules of Civil Procedure Rule 59(e) 14 and Motions in Request for Traverse 17 and 18 are DENIED. Signed by Judge William S. Duffey, Jr on 8/1/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ISSAC MORRIS,
Petitioner,
v.
1:13-cv-899-WSD
WARDEN ALLEN CARTER,
Respondent.
OPINION AND ORDER
This matter is before the Court on Petitioner’s “Motion to Alter or Amend
Judgment Pursuant to Federal Rules of Civil Procedure Rule 59(e)” [14] and
“Motion[s] in Request for Traverse” [17, 18]. The Court construes these filings as
Motions for Reconsideration of the Court’s September 27, 2013, Order [12]
dismissing this action without prejudice.
I.
BACKGROUND
On March 20, 2013, Petitioner Issac Morris (“Petitioner”), an inmate at the
Autry State Prison in Pelham, Georgia, proceeding pro se, filed a petition for
habeas corpus under 28 U.S.C. § 2254 (the “Petition”), challenging his April 23,
2008, conviction for involuntary manslaughter in the Superior Court of DeKalb
County.1
On April 18, 2013, the Magistrate Judge issued his R&R after reviewing the
Petition under Rule 4 of the Rules Governing Section 2254 Cases. The Magistrate
Judge recommended that the Petition be dismissed without prejudice because
Petitioner did not exhaust his state court remedies. On May 2, 2013, Petitioner
filed objections to the Magistrate Judge’s R&R. In his objections, Petitioner
asserted that the state court did not rule on his state habeas petition and argued that
this delay of more than one year was an unreasonable miscarriage of justice that
warrants federal relief.
On September 27, 2013, the Court adopted the Magistrate Judge’s R&R and
dismissed the Petition without prejudice because Petitioner did not exhaust his
state court remedies. The Court held that the delay did not rise to a level to excuse
Petitioner from exhausting his remedies at the state level, and that “the most
appropriate course for Petitioner to challenge an unreasonable or abusive delay in
the processing of his state habeas petition is to seek a writ of mandamus in the
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On June 17, 2011, the Georgia Court of Appeals affirmed Petitioner’s 2008
conviction for involuntary manslaughter. See Morris v. State, 712 S.E.2d 130, 134
(Ga. Ct. App. 2011). On January 11, 2012, Petitioner filed a state habeas petition
in the Superior Court of Mitchell County. In the Petition, Petitioner raised the
same grounds for relief that he raised in his state petition.
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Georgia courts to compel the state habeas judge to rule on the petition.” (See [12]
at 5).
On October 21, 2013, Petitioner filed his “Motion to Alter or Amend
Judgment Pursuant to Federal Rules of Civil Procedure Rule 59(e)” [14]. On April
17, 2014, and again on April 23, 2014, Petitioner filed his “Motion[s] for Request
in Traverse Pursuant to 28 U.S.C. § 2243” [17, 18]. Although largely
incomprehensible, construing his pro se filings liberally and as a whole, Petitioner
appears to challenge the Court’s September 27, 2013, Order on the grounds that
“for 5 of almost 7 years [P]etitioner has been continuously litigating against his
unconstitutional confinement,” (see [14] at 2), and “[i]f a fourteen-month delay
(absent good reason) were [sic] routinely permissible, the function of the great writ
would be eviscerated.” (See [18] at 1). Petitioner “prays this honorable Court will
order and schedule a traverse—expeditiously.” (Id.).
II.
DISCUSSION
A.
Legal Standard
“A motion for reconsideration made after final judgment falls within the
ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b)
(motion for relief from judgment or order).” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 n.5 (11th Cir. 1993). The Court
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does not reconsider its orders as a matter of routine practice. LR 7.2 E., NDGa.
The Court’s Local Rules require the parties to file motions for reconsideration
“within twenty-eight (28) days after entry of the order or judgment.” Id.
Petitioner seeks reconsideration pursuant to Rule 59(e). Motions for
reconsideration under Rule 59(e) are appropriate only where there is newlydiscovered evidence2 or a need to correct a manifest error of law or fact. See Hood
v. Perdue, 300 F. App’x 699, 700 (11th Cir. 2008) (citing Pres. Endangered Areas
of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560
(N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996)); Arthur, 500 F.3d at 1343
(“The only grounds for granting [a Rule 59] motion are newly-discovered evidence
or manifest errors of law or fact.”); Jersawitz v. People TV, 71 F. Supp. 2d 1330,
1344 (N.D. Ga. 1999).3
2
Evidence that could have been discovered and presented on the previouslyfiled motion is not newly discovered. See Arthur v. King, 500 F.3d 1335, 1343-44
(11th Cir. 2007); see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir.
1997) (“We join those circuits in holding that where a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during
the pendency of the motion.”).
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Motions for reconsideration under Rule 60(b) are appropriate only where
there is “mistake, inadvertence, surprise, or excusable neglect,” newly discovered
evidence, fraud, a void judgment, or a judgment that has been satisfied or is no
longer applicable. Fed. R. Civ. P. 60(b).
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A motion for reconsideration should not be used to present the Court with
arguments already heard and dismissed, or to offer new legal theories or evidence
that could have been presented in the previously-filed motion. See Arthur,
500 F.3d at 1343; O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992);
Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259 (N.D. Ga. 2003); see also Jones v.
S. Pan Servs., 450 F. App’x 860, 863 (11th Cir. 2012) (“A motion to alter or
amend a judgment cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”);
Pres. Endangered Areas, 916 F. Supp. at 1560 (“A motion for reconsideration is
not an opportunity for the moving party and their counsel to instruct the court on
how the court ‘could have done it better’ the first time.”). Whether to grant a
motion for reconsideration is within the sound discretion of the district court. See
Region 8, 993 F.2d at 806.
B.
Analysis
The Court dismissed Petitioner’s action because he has not exhausted his
state court remedies.4 “To allow simultaneous federal and state habeas
4
Under Rule 4, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition.” A district court may not grant habeas relief unless
(1) the petitioner “has exhausted the remedies available in the courts of the State”;
(2) “there is an absence of available State corrective process”; or (3) circumstances
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proceedings would offend the principles of comity that form the basis for the
exhaustion requirement.” Brown v.Walker, No. 1:09-cv-2534-WSD, 2010 WL
3516820, at *1 (N.D. Ga. Aug. 31, 2010) (citing Horowitz v. Wainwright, 709
F.2d 1403, 1404 (11th Cir. 1983) (per curiam)).
In his Motion for Reconsideration, Petitioner appears to challenge, as he has
before, that a delay of “5 of almost 7 years [where] Petitioner has been
continuously litigating against his unconstitutional confinement” constitutes an
abusive delay in the processing of his state habeas petition. (See [14] at 2).
“A federal habeas petitioner need not wait until his state petition[] for relief
[is] exhausted, if the state court has unreasonably or without explanation failed to
address [the] petition[] for relief.” Hollis v. Davis, 941 F.2d 1471, 1475 (11th Cir.
1991), cert. denied, 503 U.S. 938 (1992). There is no single standard for
evaluating what constitutes an unreasonable delay. See id. The Eleventh Circuit
has held that even past lengthy delays may be justifiable if the State is currently
exist that render such process ineffective to protect the rights of the applicant.” A
petitioner “shall not be deemed to have exhausted” the available state court
remedies “if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c). Finally, a petitioner
“shall not be deemed to have exhausted” the available state court remedies “if he
has the right under the law of the State to raise, by any available procedure, the
question presented.” Id. To fully exhaust his state court remedies, a state habeas
corpus petitioner must seek a certificate of probable cause from the Supreme Court
of Georgia after the denial of a state habeas corpus petition. Pope v. Rich,
358 F.3d 852, 854 (11th Cir. 2004) (per curiam) (citing O.C.G.A. § 9-14-52).
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“moving forward” with the petitioner’s state proceedings. See, e.g., Slater v.
Chatman, 147 F. App’x 959, 960 (11th Cir. 2005) (affirming dismissal for failure
to exhaust state remedies because, although there was “some question as to why it
would take 14 months to appoint [appellate] counsel” for petitioner, his direct
appeal appeared to be “moving forward” in state court); see also Tabatabee v.
Barrow, No. 2:12-CV-00150-RWS-JCF, 2012 WL 7018193, at *3 (N.D. Ga. Dec.
10, 2012) (citing Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir. 1976))
(“Eleventh Circuit precedent recognizes that “an inordinate and unjustified delay in
the state corrective process may well result in the frustration of petitioner’s rights
and be such a circumstance as to render that process ineffective.”); id., 2012 WL
7018193, at *5 (citing Slater, 147 F. App’x at 960) (finding that “the passage of
time does not excuse [petitioner’s] failure to exhaust his state court remedies fully
before filing [his] federal habeas petition” when his state habeas petitions appeared
to be “moving forward”).
In Hughes v. Stafford, after the state court conducted a hearing on the
petition for habeas corpus, the “proceeding apparently lay dormant” for eight (8)
years until the petitioner moved the state court to act on his petition. 780 F.2d
1580, 1581-82 (11th Cir. 1986). The state court then “promptly” denied the
petition on the merits, and, rather than seek review by the Georgia Supreme Court,
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the petitioner filed his petition for federal habeas relief. Although the court agreed
that “the eight-year delay in the state's ruling on [the] habeas corpus petition should
not have occurred,” the court found that “the state court nonetheless acted on the
merits with prompt speed when [the petitioner] asked for a ruling.” Id. at 1582.
On that basis, “there [was] nothing to indicate [the petitioner] would not have
received an expeditious handling of his case by the Georgia Supreme Court [and]
the district court properly dismissed, without prejudice, [the] habeas corpus
petition for failure to exhaust state remedies.” Id.
Here, Petitioner’s claim of a five-year delay is based on the total length of
time between his April 23, 2008, conviction and the March 20, 2013, filing of his
Petition in this action. The Georgia Court of Appeals affirmed Petitioner’s
conviction on June 17, 2011. On January 11, 2012, Petitioner filed his state habeas
petition. On September 10, 2012, the state court conducted an evidentiary hearing
on his petition, and Petitioner filed a brief in support of his state habeas petition as
recently as November 22, 2012. While the three-year period between his
conviction and denial of his appeal is unexplained, the current delay is not as
prolonged as Petitioner asserts and it appears that Petitioner’s state proceedings are
“moving forward.” On the facts presented here, the Court finds that the fourteen
(14) month period between the filing of Petitioner’s January 11, 2012, state habeas
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petition, and his March 20, 2013, federal habeas petition—during which time the
state court conducted an evidentiary hearing and Petitioner later submitted
additional briefing—is not an unreasonable delay and does not rise to the level
required to excuse Petitioner from exhausting the remedies available at the state
level.
See Slater, 147 F. App’x at 960 (affirming dismissal for failure to exhaust
state remedies because, although there was “some question as to why it would take
14 months to appoint [appellate] counsel” for petitioner, his direct appeal now
appeared to be “moving forward” in state court); see also Hughes, 780 F.2d 1580
(“Although the eight-year delay in the state's ruling on [the] habeas corpus petition
should not have occurred, the state court nonetheless acted on the merits with
prompt speed when [the petitioner] asked for a ruling and there [was] nothing to
indicate [the petitioner] would not have received an expeditious handling of his
case by the Georgia Supreme Court.”).
In its September 27, 2013, Order, the Court also stated that “the most
appropriate course [for Petitioner] to challenge an unreasonable or abusive delay in
the processing of his state habeas petition is to seek a writ of mandamus in the
Georgia courts . . . .” ([12] at 5) (emphasis added). In his Motions, Petitioner does
not assert, and it does not appear, that he has done so. Because Georgia law allows
him to seek a writ of mandamus to compel the superior court to rule on his state
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habeas petition, Petitioner has not exhausted all state remedies available to him and
his Petition is required to be dismissed for this additional reason. See, e.g.,
Jackson v. Walker, 206 F. App’x 967, 969 (11th Cir. 2006) (affirming dismissal
without prejudice for failure to exhaust state remedies where state habeas petition
was pending for two years without a ruling, state court had not decided petition
within the period required by statute, and petitioner had not sought a writ of
mandamus; petitioner had not exhausted all available state remedies because
Georgia law allows him to seek a writ of mandamus to compel state court ruling on
his habeas petition).
In his Motions, Petitioner asserts the same arguments that this Court
previously considered and dismissed. Petitioner does not allege the existence of
new evidence, or an intervening development, or change in the law. Petitioner has
not presented any grounds upon which to support granting him relief from the
Court’s September 27, 2013, Order. Petitioner has not exhausted his remedies in
state court and this Court is not the proper forum for Petitioner to seek relief
regarding the alleged delay in processing his state habeas petition.5 For these
5
To the extent Petitioner’s filings here could be construed as seeking relief
from this Court to compel a decision on his state habeas petition, “[f]ederal courts
have no jurisdiction to issue writs of mandamus directing a state court and its
judicial officers in the performance of their duties where mandamus is the only
relief sought.” See Bailey v. Silberman, 226 F. App’x 922, 924 (11th Cir. 2007)
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reasons, Petitioner’s Motions for Reconsideration are required to be denied.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner Issac Morris’s “Motion to Alter
or Amend Judgment Pursuant to Federal Rules of Civil Procedure Rule 59(e)” [14]
and Motions in Request for Traverse [17, 18] are DENIED.
SO ORDERED this 1st day of August, 2014.
(citing 28 U.S.C. § 1361 & Moye v. Clerk, DeKalb Cnty. Superior Court, 474 F.2d
1275, 1276 (5th Cir. 1973))
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