Roberts v. Unnamed Respondent
Filing
41
OPINION and ORDER denying 34 Motion for Reconsideration ; denying as moot 35 Motion to Amend; denying as moot 36 Motion to Amend; denying as moot 37 Motion to Stay; denying as moot 38 Motion to Stay; denying as moot 39 Motion to Amend; denying as moot 40 Motion to Amend. Signed by Judge William S. Duffey, Jr on 6/14/2016. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMES EARL ROBERTS, JR.,
Petitioner,
v.
1:14-cv-781-WSD
GRADY PERRY, Warden,
Respondent.
OPINION AND ORDER
This matter is before the Court on James Earl Roberts, Jr.’s (“Petitioner”)
Motion for Reconsideration [34], Motions to Amend Habeas Corpus
Petition [35, 36], Motions to Hold Action in Abeyance until Petitioner can Exhaust
all State Remedies [37, 38], and Motions to Amend [39, 40].
I.
BACKGROUND
On November 3, 2008, Petitioner pled guilty to ten (10) counts of
aggravated child molestation and six (6) counts of child molestation. ([18.4] at 3).
He was sentenced to twenty (20) years, with the first ten (10) years to be served in
prison and the remainder to be served on probation. (Id.; [16.1] at 2). Petitioner
did not appeal.
On August 12, 2009, Petitioner filed, in the Superior Court of Johnson
County, an application for writ of habeas corpus. ([18.3] at 4). The petition was
transferred to the Superior Court of Coffee County, and was denied on
August 13, 2013. ([18.4]). On January 6, 2014, the Georgia Supreme Court
denied [18.5] Petitioner’s application for a certificate of probable cause to appeal
and, on January 27, 2014, denied [18.6] his motion for reconsideration.
On January 28, 2014, Petitioner allegedly was transferred, in error, from
Coffee Correctional Facility to Fulton County Jail, because the State confused him
with another inmate with a similar name. ([22] at 1-3; [23] at 2-3). Petitioner
claims that he was required to leave his property, including his federal habeas
petition, at Coffee Correctional Facility. ([23] at 4; Pet. Obj. [27] at 1-2).
On March 17, 2014, Petitioner submitted a letter [1] to the Court, seeking an
extension of time to file a federal habeas petition. He listed Coffee Correctional
Facility as his return address. On March 31, 2014, Magistrate Judge
Gerrilyn G. Brill denied [2] Petitioner’s request, explaining that Petitioner “must
satisfy the one-year statute of limitations in 28 U.S.C. § 2244(d).” ([2] at 1). The
Magistrate Judge declined to rule on the timeliness of Petitioner’s federal habeas
petition because Petitioner had not presented a record sufficient to evaluate the
timeliness of Plaintiff’s petition. The Magistrate Judge directed the Clerk to send
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Petitioner a habeas petition, ordered Petitioner to file his habeas petition within
thirty (30) days, and cautioned Petitioner that the case could be dismissed if he did
not comply with the Order or keep the court advised of his current address.
On May 29, 2014, Petitioner appears to have been released from Fulton
County Jail. ([23] at 2). Petitioner claims that he did not receive the March 17,
2014, Order (“March Order”) and habeas petition forms until June 12, 2014,
because they were sent to Coffee Correctional Facility rather than to the Fulton
County Jail.
On June 17, 2014, Petitioner executed his federal Petition for Writ of Habeas
Corpus [10]. He asserted that (1) he did not receive a speedy trial, (2) his
conviction constitutes a double jeopardy violation, (3) he was falsely arrested and
imprisoned, (4) he received ineffective assistance of counsel, (5) the state habeas
court improperly denied a continuance, and (6) the state trial court improperly
denied his motion to quash the second indictment. ([10] at 5-7).
On September 18, 2014, Georgia Department of Corrections Commissioner
Brian Owens (the “Commissioner”) moved to intervene as party respondent [17].
The same day, the Commissioner filed his Motion to Dismiss Petition as
Untimely [16] (“Motion to Dismiss”). On October 6, 2014, Petitioner filed
responses [22, 23] to the Motion to Dismiss, arguing that a State impediment
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prevented him from filing a timely habeas petition and that he was entitled to
equitable tolling.
On November 21, 2014, the Magistrate Judge issued her Final Report and
Recommendation [25] (“R&R”), granting the Commissioner’s Motion to Intervene
as Party Respondent, and recommending that the Commissioner’s Motion to
Dismiss be granted. The Magistrate Judge found that Petitioner executed his
federal habeas petition twenty-eight (28) days late, that a State impediment did not
prevent him from filing a timely habeas petition, and that equitable tolling was not
warranted. (R&R at 5-7).
On December 8, 2014, Petitioner filed his Objections [27] to the R&R,
arguing again that a State impediment prevented him from timely filing his habeas
petition. He stressed (1) that he was transferred, in error, from Coffee Correctional
Facility to Fulton County Jail, (2) that he was required to leave his legal materials
at Coffee Correctional Facility, (3) that Fulton County Jail did not give him writing
materials or access to a law library, and (4) that the March Order and habeas
petition forms were sent to Coffee Correctional Facility and that he did not receive
them until after the statute of limitations expired. On September 18, 2015, the
Court overruled Petitioner’s Objections, adopted the R&R, and granted the
Commissioner’s Motion to Dismiss.
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On October 1, 2015, Petitioner, proceeding pro se, filed his Motion for
Reconsideration, repeating his argument that equitable tolling is warranted and that
a State impediment prevented him from timely filing his habeas petition. He again
asserts (1) that he was transferred, in error, from Coffee Correctional Facility to
Fulton County Jail, (2) that he was required to leave his legal materials at Coffee
Correctional Facility, (3) that Fulton County Jail did not give him writing materials
or access to a law library, and (4) that the March Order and habeas petition forms
were sent to Coffee Correctional Facility and that he did not receive them until
after the statute of limitations expired. He also asserts that he was denied, until
“after June 2009,” a “transcript” of his state court proceedings, even though he
“needed” it to prepare “an effective defense appeal.” ([34] at 3).
On February 16, 2016, and February 25, 2016, Petitioner filed his Motions
to Amend Habeas Corpus Petition. On February 29, 2016, and March 2, 2016, he
filed his Motions to Hold Action in Abeyance until Petitioner can Exhaust all State
Remedies. On April 29, 2016, Petitioner filed his Motions to Amend, seeking to
change the party names in this action.
II.
DISCUSSION
“Motions for reconsideration shall not be filed as a matter of routine
practice.” LR 7.2(E), NDGa. Instead, they “should be reserved for extraordinary
5
circumstances.” Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675
(N.D. Ga. 2001).
Under Rule 60(b) of the Federal Rules of Civil Procedure, the Court may
grant a motion for reconsideration under the following circumstances:
(1) “mistake, inadvertence, surprise, or excusable neglect,” (2) newly discovered
relevant evidence, (3) misconduct by an opposing party, (4) the judgment is void,
(5) the judgment has been satisfied, released or discharged, (6) the judgment is
based on an earlier judgment that has been reversed or vacated, (7) applying the
judgment prospectively is no longer equitable, or (8) “any other reason that
justifies relief,” such as “an intervening development or change in controlling law”
or a “need to correct a clear error.” Fed. R. Civ. P. 60(b); Jersawitz v. People TV,
71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999).
Petitioner’s Motion for Reconsideration does not assert facts satisfying any
of these circumstances. Petitioner repeats arguments already rejected by the Court
in its September 18, 2015 Opinion and Order. Because Petitioner has not shown
“extraordinary circumstances” justifying relief, his Motion for Reconsideration is
denied. See Adler, 202 F.R.D. at 675 (“[A] motion for reconsideration should not
be used to reiterate arguments that have been made previously, but such a motion
should be reserved for extraordinary circumstances.”).
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Petitioner’s Motion for Reconsideration
[34] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motions to Amend Habeas
Corpus Petition [35, 36] are DENIED AS MOOT.
IT IS FURTHER ORDERED that Petitioner’s Motions to Hold Action in
Abeyance until Petitioner can Exhaust all State Remedies [37, 38] are DENIED
AS MOOT.
IT IS FURTHER ORDERED that Petitioner’s Motions to Amend [39, 40]
are DENIED AS MOOT.
SO ORDERED this 14th day of June, 2016.
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