McDonald v. United States of America

Filing 26

ORDER denying 23 Motion for Reconsideration; denying as moot 23 Motion for Certificate of Appealability. Signed by Chief Judge J. Randal Hall on 11/14/2018. (jlh)

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

TYRONE A. MCDONALD,

Petitioner,
CV 117-167

V.

(Formerly CR 114-068)
UNITED STATES OF AMERICA,

Respondent.

ORDER

Pending

before

reconsideration
C'COA").

and

the

Court

motion

for

(Doc. 23.)

On

is
a

Petitioner's

Certificate

of

motion

for

Appealability

December 4, 2017, Petitioner filed a

petition for habeas corpus under 28 U.S.C. § 2255 and laid out
various

grounds for

Recommendation

relief.

(""R&R")

In

entered

a

twenty-two-page

Report and

on August 13, 2018, the

United

States Magistrate Judge addressed those grounds and recommended
Petitioner's

hearing.
filed

habeas

petition

be

(R&R, Doc. 14, at 21-22.)

his

Objection

to

the

R&R

denied

without

an

On October 2, 2018, Petitioner
(doc.

20),

which

considered before entering an Order adopting the R&R.
Oct. 18, 2018, Doc. 21.)

evidentiary

this

Court

(Order of

In that Order, the Court conducted a

careful de novo review and concluded Petitioner failed to make a

'substantial showing of the denial of a constitutional right" under

28 U.S.C. § 2253(c)(2) and also denied Petitioner a COA.

(Id. at

4-5.)

Now, Petitioner moves under Federal Rules of Civil Procedure

52(b) and 59(e) to amend the judgment on his habeas petition.
Further, Petitioner seeks a COA from this Court authorizing him to

appeal the judgment.
Pursuant to Federal Rule of Civil Procedure 59(e), a party

may seek to alter or amend a judgment in a civil case within
twenty-eight days.

Although Rule 59(e) does not set forth the

grounds for relief, district courts in this Circuit have identified
three that merit reconsideration of an order: (1) an intervening

change in controlling law; (2) the availability of new evidence;
and

(3)

the

injustice.

need

to

correct

clear

error

or

prevent

manifest

See, e.g., Ctr. for Biological Diversity v. Hamilton,

385 F. Supp. 2d 1330, 1337 (N.D. Ga. 2005); Sussman v. Salem, Saxon
& Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Ga. 1994).

Amovant

must "set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision."

Cover v. Wal-

Mart Stores, Inc., 148 F.R.D. 294, 294 (M.D. Fla. 1993) (citation
omitted).
Motions

for

reconsideration

should

not

be

used

to

raise

arguments which could and should have been made before the judgment
was issued.

Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th

Cir. 1998); see also Michael Linet, Inc. v. Vill. of Wellington,

Fla., 408 F.3d 757, 763 (llth Cir. 2005) ('MA party] cannot use a

Rule 59(e) motion to relitigate old matters, raise argument or

present evidence that could have been raised prior to the entry of
judgment.").
Petitioner's

first

contention

is

that

the

Court

did

not

address every claimed constitutional violation in Petitioner's

Objection to the R&R (doc. 20).

The Court, however, is under no

obligation to consider factual claims or legal arguments raised
for the first time in an objection to an R&R.

Williams v. McNeil,

557 F.3d 1287, 1292 (llth Cir. 2009) (finding district judge has

broad discretion in considering arguments not presented to the

magistrate judge.)

Regardless, the R&R addressed every ground

raised by Petitioner in his habeas petition in compliance with
Clisby V. Jones, 960 F.2d 925, 936 (llth Cir. 1992).

Many of

Petitioner's

earlier

objections

were

simply

restatements

arguments made in his habeas petition.
dismissing

the

case,

the

Court

of

Finally, in its Order

addressed

Petitioner's

new

objection regarding the state court testimony of Deputy Martinez.
(See

Order

of Oct.

18,

2018,

Doc.

21,

at

2-5.)

Thus,

every

substantive claim^ of a constitutional violation has been addressed

by the Court.

1 Petitioner's first objection stated generally that the R&R did not address
the facts set forth in his § 2255 petition, but he does not specify which facts
were not addressed.
At any rate, the R&R included a thorough review of all
relevant facts.

(See R&R, at 1-7.)
3

Next, Petitioner argues, for the second time, that Deputy

Martinez's testimony from a prior trial should have been admitted
to prove Sergeant Vinson committed perjury at Petitioner's trial.
The Court has already addressed this argument finding there is no
basis to conclude Sergeant Vinson committed perjury and Deputy

Martinez's testimony did not address Sergeant Vinson's knowledge
of the events.

Accordingly, the Court finds that Plaintiff has

not made the requisite showing under Rule 59(e) for relief from
judgment. See Michael Linet, Inc., 408 F.3d at 763 (Rule 59(e)
should

not

be

used

to

relitigate

old

matters).

Therefore,

Petitioner's motion for reconsideration is DENIED.

Finally,

Petitioner

requests

the

Court

issue

him

a

COA

authorizing him to appeal the denial of his 28 U.S.C. § 2255 motion
to vacate.

The Court already denied Petitioner a COA in its Order

of October 17, 2018, pursuant to Rule 11(a) of the Rules Governing

Section 2255 Proceedings.

Accordingly, Petitioner's motion for a

COA is DENIED AS MOOT.

ORDER

ENTERED

at

Augusta,

Georgia,

this

of

November, 2018.

J.

HALL, CHIEF JUDGE

UNITED/states DISTRICT COURT
JRN DISTRICT OF GEORGIA