Alvarez v. United States Of America
Filing
27
ORDER denying 26 Motion for Reconsideration re 25 Order on Motion for Leave to Appeal in forma pauperis, and this case remains closed. Signed by Chief Judge Lisa G. Wood on 7/6/2015. (ca)
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CARLOS ALVAREZ,
Petitioner,
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CIVIL ACTION NO.: 2:14-cv-70
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V.
WARDEN SUZANNE HAST[NGS,
Respondent.
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ORDER
Before the Court is Petitioner Carlos Alvarez's Motion for
Reconsideration. Dkt. No. 26. In this Motion, Petitioner seeks
reconsideration of this Court's Order denying him leave to
proceed in forma pauperis on appeal and denying him a
certificate of appealability (dkt. no. 25) . Id. For the
reasons set forth below, Petitioner's Motion is DENIED.
BACKGROUND
Petitioner filed this action pursuant to 28 U.S.C. § 2241
seeking to attack the validity of his sentence imposed by the
United States District Court for the Middle District of Florida
after his conviction for distribution of heroin. Dkt. No. 1.
Respondent filed a Motion to Dismiss arguing that Petitioner's
action was procedurally barred, as he had previously filed an
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unsuccessful petition pursuant to 28 U.S.C. § 2255 in the Middle
District of Florida and had twice unsuccessfully applied to the
United States Court of Appeals for the Eleventh Circuit to file
a second or successive Section 2255 petition. Dkt. No. 9.
The Magistrate Judge issued a Report recommending that
Respondent's Motion to Dismiss be granted. Dkt. No. 12. The
Report and Recommendation concluded that Petitioner could not
use Section 2241 to attack his sentence because he could not
satisfy Section 2255's savings clause. Id. The Magistrate
Judge based this determination, among other reasons, on the fact
that one of the authorities relied upon by Petitioner, Burrage
v. United States, 134 S. Ct. 881, 888 (2014), had not been made
retroactive by the Supreme Court. Id. at pp. 6-7. The
Magistrate Judge pointed out that the Eleventh Circuit had
informed Petitioner that Burrage did not announce a new rule of
constitutional law and did not apply retroactively when
rejecting his application to file a second or successive Section
2255 petition. Id. at pp. 2-3 (citing Dkt. No. 9-9). After a
de novo review of the entire record, including Petitioner's
Objections (dkt. no. 14), the Court adopted the Report and
Recommendation and granted Respondent's Motion to Dismiss. Dkt.
No. 15.
After unsuccessfully moving for reconsideration of the
Court's Order of dismissal, Petitioner filed a Notice of Appeal
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on March 13, 2015. Dkt. No. 19. Petitioner then filed his
Motion for Leave to Appeal in Forma Pauperis on April 6, 2015.
Dkt. No. 22. On May 5, 2015, the Court denied this Motion and
denied Petitioner a certificate of appealability. Dkt.
No. 25.
The Court found that Petitioner's appeal was without arguable
merit in either law or fact and that he failed to make a showing
of a denial of a constitutional right. Id. It is this ruling
that Petitioner now asks the Court to reconsider. Dkt.
No. 26.
DISCUSSION
Pursuant to Federal Rule of Civil Procedure 59(e) ("Rule
59(e)"), a party may seek to alter or amend a judgment in a
civil case within twenty-eight days after the entry of the
judgment.
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 need
to correct clear error or prevent manifest injustice.
Argo v. Gregory, No. CV 212-213, 2014 WL 6683259, at *1 (S.D.
Ga. Nov. 25, 2014).
Courts do not revisit orders routinely, and reconsideration
is an "extraordinary remedy, to be employed sparingly." Smith
ex rel. Smith v. Augusta-Ruchmond Ctv., No. CV 110-126, 2012 WL
1355575, at *1 (S.D. Ga. Apr. 18, 2012) (quoting Williarnsv.
Cruise Ships Catering & Serv. Int'l, N.y., 320 F. Supp. 2d 1347,
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1358 (S.D. Fla. 2004)) . To warrant reconsideration, a movant
must "set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision." Cover v. WalMart Stores, Inc., 148 F.R.D. 294, 294, 295 (M.D. Fla. 1993)
(quoting All Haw. Tours, Corp. v. Polynesian Cultural Ctr., 116
F.R.D. 645 (D. Haw. 1987), rev'd in part on other grounds, 855
F.2d 860 (9th Cir. 1988)). "A Rule 59(e) motion cannot be used
to relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment."
Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th
Cir. 2010) (alterations omitted) (quoting Michael Linet, Inc. v.
Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005)). A
reconsideration motion "is not an opportunity for the moving
party to instruct the court on how the court 'could have done it
better' the first time." Jersawitz v. People TV, 71 F. Supp. 2d
1330, 1344 (N.D. Ga. 1999) (alterations omitted) (quoting
Preserve Endangered Areas of Cobb's History v. U.S. Army Corps
of Eng'rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995)). The
Court's interest in finality is strong, and "[a] busy district
court need not allow itself to be imposed upon by the
presentation of theories seriatim." Lussier v. Dugger, 904 F.2d
661, 667 (11th Cir. 1990) (quoting Union Planters Nat'l Leasin
v. Woods, 687 F.2d 117, 121 (5th Cir. 1982)).
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In the instant Motion, Petitioner argues that the Court
should reconsider its denial of his Motion for Leave to Appeal
in Forma Pauperis and the denial of a certificate of
appealability because of concessions recently made by the
Government in Ragland v. United States, 784 F. 3d 1213, 1214 (8th
Cir. 2015). Dkt. No. 26. Specifically, Petitioner points out
that in Ragland, the Government conceded that Burrage applies
retroactively. Id.
Regardless of the concessions made by the Government in an
entirely separate case, the Supreme Court has not made Burrage
retroactive. The Eleventh Circuit has already advised
Petitioner of the same and has directly foreclosed him from
making the same arguments that he now seeks to raise on appeal.
See Dkt. No. 9-9. Indeed, the Eleventh Circuit has twice
rejected Petitioner's efforts to attack his sentence.
Consequently, Petitioner has not shown an intervening change in
controlling law or that reconsideration is necessary to correct
clear error or prevent manifest injustice. Therefore, there is
no reason for the Court to exercise the "extraordinary remedy"
of reconsidering its decision that Petitioner's appeal is not
taken in good faith and does not raise issues worthy of a
certificate of appealability.
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CONCLUS ION
For the reasons set forth above, Petitioner's Motion for
Reconsideration (dkt. no. 26) is DENIED, and this case remains
CLOSED.
SO ORDERED, this
day of
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U
S
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j, ~ '/ ,
/ ODBEY WOOD, CHIEF JUDGE
ED STATES DISTRICT COURT
HERN DISTRICT OF GEORGIA
2015.
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