Alvin v. United States Of America

Filing 41

ORDER granting in part and denying in part 38 Motion for Reconsideration ; denying 39 Motion. Signed by Judge B. Avant Edenfield on 5/3/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
MISTRELL ALVIN,
Movant,
v.

6:11-cv-65

UNITED STATES OF AMERICA,
Respondent.
ORDER
I.

INTRODUCTION

Before the Court are Movant Mistrell
Alvin’s (“Alvin”) “Motion for
Reconsideration and Motion to Address
Claims the Court Failed to Address,”
“Motion for Reconsideration and
Clarification of the Record,” and “Motion to
Present Newly Discovered Evidence.” See
Docs. 36; 38; 39.
II.

ANALYSIS

Alvin was convicted of conspiracy to
possess with the intent to distribute cocaine.
See United States v. Alvin, 6:06-cr-26, Doc.
720 (S.D. Ga. Jan. 23, 2008). The Eleventh
Circuit upheld Alvin’s sentence on appeal.
See United States v. Bacon, 598 F.3d 772
(11th Cir. 2010).
On June 6, 2011, Alvin moved for 28
U.S.C. § 2255 relief. See Doc. 1. On
January 10, 2012, the Magistrate Judge
issued a Report and Recommendation
(“R&R”) recommending denial of Alvin’s
motion, which this Court adopted over
Alvin’s objections. See Docs. 30; 33; 34.

On February 29, 2012, Alvin filed a
Federal Rule of Civil Procedure 59(e)
motion to alter the judgment. See Doc. 36.
The Magistrate Judge issued an Order
denying the motion. See Doc. 37. The
Magistrate Judge, however, did not have the
authority to issue the order disposing of the
motion. Cf. S.D. GA . L.R. 72.3. Thus, the
Magistrate Judge’s order is a legal nullity,
which the Court will disregard. Alvin’s
second Rule 59(e) motion, see Doc. 38, is
GRANTED in PART, DENIED in PART.
The Court considers Alvin’s first Rule 59(e)
motion anew. Yet, as discussed infra, the
Court denies his first Rule 59(e) motion.
“[T]he only grounds for granting a Rule
59 motion are newly-discovered evidence or
manifest errors of law or fact. 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)
(internal citation and quotation omitted)
(quoting Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007) (per curiam)). A Rule
59(e) motion must be filed no later than 28
days after judgment. See F ED. R. C IV. P.
59(e). Alvin’s first 59(e) motion is timely.
See Doc. 36 at 25-26 (signed on February
25, 2012 and postmarked on February 27,
2012).
Alvin claims the Court violated Clisby v.
Jones by failing to address several of the
claims in his § 2255 motion. See Doc. 36 at
1. In Clisby, the Eleventh Circuit instructed
district courts to resolve all claims for relief
raised in a petition for writ of habeas corpus
prior to granting or denying relief. 960 F.2d
925, 936 (11th Cir. 1992); see also Rhode v.

United States, 583 F.3d 1289, 1291 (11th
Cir. 2009) (applying Clisby to a federal
prisoner’s § 2255 motion). Alvin’s Clisby
argument, however, is meritless. The R&R
resolved all fifteen grounds and the
corresponding subparts that were raised in
Alvin’s § 2255 motion. See Doc. 30.

receiving authorization from the Justice
Department to wire tap and that his counsel
was ineffective for failing to investigate and
raise this issue. See id. at 7-10.
Alvin then claims his counsel erred in
not moving to dismiss count one of his
indictment as defective. See id. at 11-13.
Alvin argues that the Government
committed a Brady violation. See id. at 1415. Furthermore, Alvin avers that the
Magistrate Judge clearly erred in denying
his ineffective assistance claim against his
appellate counsel under Ground Thirteen.
See id. at 16-18.

Alvin claims the Court failed to address
his claim that “[t]he Government never
received authorization to wire tap [the]
target telephone [number].” See Doc. 36 at
3. The R&R, however, resolved all of
Alvin’s claims under Ground One,
concluding that they were procedurally
defaulted and that he had not demonstrated
that ineffective assistance of counsel was
responsible for the default. See Doc. 30 at
13.

Finally, Alvin contends the Court erred
in denying his discovery motions, motion to
subpoena evidence, and motion to appoint
counsel. See id. at 19-22. Alvin avers that
the granting of these motions would allow
him to prove his allegations. See id. at 21.

Alvin also claims that the Magistrate
Judge failed to make a finding on his claim
“that counsel was ineffective for failing to
request a continuance, investigate and
suppress the unlawful wiretaps.” See Doc.
36 at 7. Yet, the Magistrate Judge
recommended denying all of Alvin’s
ineffective assistance claims raised in his §
2255 motion. See Doc. 30 at 13-16.

Alvin essentially attempts to re-litigate
the claims and arguments raised in his §
2255 motion and rejected by the Magistrate
Judge and this Court pursuant to its adoption
Order. Alvin does not demonstrate manifest
error of law or fact. His first Rule 59(e)
motion is DENIED.

The gist of Alvin’s remaining arguments
is that the Magistrate Judge made clear
errors of law and fact. Alvin claims the
Magistrate Judge clearly erred because the
record allegedly demonstrates that the
government impermissibly began
wiretapping before the judge’s order and
that his counsel was therefore ineffective in
not raising the issue. See Doc. 36 at 5-6.
Alvin also argues that the government agent
erred by allegedly submitting an affidavit to
the district judge two months prior to

On April 19, 2012, Alvin filed his third
Rule 59(e) motion presenting what he
describes as newly discovered evidence.
See Doc. 39. This “evidence” consists of
five pages, along with a corresponding
letter, obtained via a Freedom of
Information Act (“FOIA”) request to the
Office of Enforcement Operations of the
Department of Justice’s (“DOJ”) Criminal
Division. See id. at 7-13. The letter is dated
September 17, 2010. See id. at 7. Alvin
claims the documents just now came into
2

not impermissibly successive). This Court
has previously rejected a variation of his
argument that the Government committed
fraud. See Docs. 30 at 3-14; 34.

possession because he first needed the
consent of a fellow defendant in his criminal
case. See id. at 1-2.
Alvin claims the evidence demonstrates
that the Government fabricated the DOJ’s
May 30, 2006 authorization of the pursuit of
a wiretap, thus committing a fraud upon the
Court. See id. at 2-5; see also Doc. 18-1 at
2-3. He asserts that because this
memorandum authorizing the wiretap was
not obtained through his fellow defendant’s
FOIA request, then the memorandum must
have been falsified. See id. at 2. He avers
that this alleged falsification prevented him
from fully litigating his claims and now
entitles him to habeas relief. See id. at 3-4.

Alvin here has not shown that the DOJ
memorandum authorizing the wiretap should
have been provided in response to the
particular FOIA request or otherwise should
have been part of the publicly available file.
This alleged “newly discovered evidence”
does not demonstrate that the Government
fabricated the DOJ authorization
memorandum or that his counsel was
ineffective in raising the particular issue.
Cf. Alvin, 6:06-cr-26, Doc. 1141 at 1-2
(denying Alvin’s motion for reconsideration
based on “newly discovered evidence”
because the evidence had been available
before the deadline’s expiration). Alvin has
not presented sufficient evidence to support
his serious allegation that the Government
falsified the DOJ authorization
memorandum. Therefore, his motion is

The Government responds that Alvin’s
motion is untimely. See Doc. 40 at 2. Rule
59(e) motions must be raised within 28 days
after the entry of judgment. F ED. R. C IV. P.
59(e). This Court denied Alvin’s § 2255
motion on January 30, 2012. See Doc. 34.
Alvin brought this motion well more than
twenty-eight days later, and thus it is
untimely. See Doc. 39 (signed on April 13,
2012). The Court could construe the filing
as a Rule 60(b) motion, but such a motion
based on newly discovered evidence would
constitute an impermissible successive
motion. See F ED. R. C IV. P. 60(b)(2)
(allowing relief from judgment based on
newly discovered evidence); 28 U.S.C. §§
2244(b), 2255(h).

DENIED.
III. CONCLUSION

Alvin’s first Rule 59(e) motion, see Doc.
36, is DENIED.
Alvin’s second Rule 59(e) motion, see
Doc. 38, is GRANTED in PART, DENIED
in PART. The Court has considered his first
Rule 59(e) motion anew but has denied the
motion.
Alvin’s “Motion to Present Newly
Discovered Evidence,” see Doc. 39, is

Alvin, however, argues that the
Government committed fraud upon this
Court, and the Court will consider the merits
of his argument. Cf. Galatolo v. United
States, 394 F. App’x 670, 671-72 (11th Cir.
2010) (stating that a Rule 60(b)(3) motion is

DENIED.

3

This 3rd day of May 2012.

I)
B- AVANT EDENFIELØ, JIJDGE
AVANT
UNiTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA