Lee v. Brown

Filing 26

ORDER denying 17 Motion for Reconsideration; denying 18 Motion for Reconsideration; denying 19 Motion to Appoint Counsel; denying 20 Application to Appeal in forma pauperis; denying 21 Motion for Certificate of Appealability. The Court C ERTIFIES under 28 U.S.C. § 1915(a)(3) that hisappeal is not taken in good faith; and his 21 motion for a certificate of appealability, as unnecessary, because only a federal habeas corpus petitioner requires a certificate to appeal from the decision of a federal district court. Signed by Judge Richard W. Story on 10/24/13. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
SHELTON LEE,
GDC ID # 1145679, Case # 534293,
Movant,

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v.
BILLY BROWN,
Respondent.

CIVIL ACTION NO.
2:13-CV-00141-RWS

PRISONER ACTION
FED. R. CIV. P. 60(d)

ORDER
Movant has filed two essentially identical motions for reconsideration. (Docs.
17-18). The Court construes these motions jointly as a Fed. R. Civ. P. 59(e) motion
to alter or amend its judgment (Docs. 15-16) dismissing Movant’s complaint (Doc. 1).
Movant has filed three related motions. (Docs. 19-21).
I.

Fed. R. Civ. P. 59(e) Standard
A Rule 59(e) motion for reconsideration is appropriate only in light of

“(1) newly discovered evidence, (2) an intervening development or change in
controlling law, or (3) the need to correct a clear error or prevent manifest injustice.”
Jersawitz v. People TV, 71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999) (noting that “[a]
motion for reconsideration is not an opportunity for the moving party . . . to instruct
the court on how the court could have done it better the first time” (internal quotations

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omitted)); see also United States v. Battle, 272 F. Supp. 2d 1354, 1357 (N.D. Ga.
2003) (noting, in § 2255 context, same “three primary grounds for reconsideration of
a judgment,” and stating that movant “must demonstrate why the court should
reconsider its decision and [must] set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision” (internal quotations omitted)).
“Motions for reconsideration shall not be filed as a matter of routine practice,” LR
7.2(E), NDGa, and “may 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” previously, “unless a reason is given for failing” to do so, Bryan v. Murphy,
246 F. Supp. 2d 1256, 1259 (N.D. Ga. 2003) (internal quotations omitted).
II.

Discussion
The Court previously explained that it may grant Rule 60(d)(3) relief to Movant

only if he can establish by clear and convincing probative facts that the respondent in
his 2009 federal habeas corpus action committed fraud upon this Court to induce the
dismissal of that action. (See Doc. 15 at 2 & n.1). Because Movant failed to present
any such evidence, the Court denied his Rule 60(d) motion. (Id. at 3).
In his motion for reconsideration, Movant argues that this Court erred in denying
his Rule 60(d) motion because various parties, including at least one state court judge,
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committed fraud with respect to the “jury patent” at his state criminal trial. This fraud,
Movant argues, allowed the jury to convict him based on evidence proven only under
a preponderance standard, but not beyond a reasonable doubt. (See generally Docs.
17-18).
This argument fails here. Movant does not refer to newly discovered evidence
or an intervening change in the controlling caselaw. He thus bases his Rule 59(e)
motion on “the need to correct a clear error or prevent manifest injustice.” See
Jersawitz, 71 F. Supp. 2d at 1344. But Movant has not “set forth facts or law of a
strongly convincing nature to induce the court to reverse its prior decision.” See
Battle, 272 F. Supp. 2d at 1357. He once again seeks relief from fraud that he alleges
occurred not here but in state court. He thus has not demonstrated clear error or
manifest injustice in this Court’s previous order.
III.

Conclusion
Movant’s motions for reconsideration (Docs. 17-18) are DENIED. Also

DENIED are Movant’s three related motions: (1) his motion for appointment of
counsel to represent him in this Rule 60(d) action (Doc. 19), as moot; (2) his motion
for leave to proceed in forma pauperis on appeal (Doc. 20), because the motion is not
in the proper form and because Movant has presented no issue for appellate review that
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is not frivolous, so that the Court CERTIFIES under 28 U.S.C. § 1915(a)(3) that his
appeal is not taken in good faith; and (3) his motion for a certificate of appealability
(Doc. 21), as unnecessary, because only a federal habeas corpus petitioner requires a
certificate to appeal from the decision of a federal district court.
IT IS SO ORDERED this 24th day of October, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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