Stanton v. United States Of America

Filing 40

ORDER denying 37 Motion for Reconsideration; granting 38 Motion to take notice that his Rule 59(e) motion was timely filed; denying as moot 39 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge J. Randal Hall on 5/25/17. (cmr)

THE UNITED

STATES DISTRICT COURT

SOUTHERN DISTRICT

FOR THE

OF GEORGIA

STATESBORO DIVISION

TERRANCE GERARD STANTON,

Petitioner,

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*
*

*
UNITED STATES OF AMERICA,

Respondent.

CV

615-064

(Formerly CR 612-018)

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*

ORDER

On April 11, 2017, this Court dismissed Petitioner's motion
brought pursuant to 28 U.S.C.

§ 2255.

On April 24,

2017,

Petitioner filed a motion to extend the time to file a Rule 59(e)

motion, Federal Rules of Civil Procedure, or in the alternative,

a notice of appeal.

Because a district court cannot extend the

time to file Rule 59(e) motions,

the Court denied the motion to

extend time and directed the Clerk of Court to docket the motion

as a Notice of Appeal nunc pro tunc to April 24, 2017.

(See

Order of May 4, 2017, Doc. 32.)
Not satisfied with this result,

Petitioner filed his Rule

59(e) motion on May 10, 2017, along with a motion asking the
Court to take notice that the Rule 59(e) motion was timely filed

post-judgment and a motion to proceed in forma pauperis.
Rule 59(e) motions must be filed within 28 days of the entry

of judgment.

Judgment in this case was entered on April 11,

2017.

Thus,

motion.

Petitioner had until

May

9,

2017,

to

file

his

Although the Clerk docketed his Rule 59(e) motion on May

10th, it appears that Petitioner deposited it in the mail on May
3,

2017.

his

Accordingly,

Rule

GRANTED,

59(e)

motion was

timely filed

(doc.

38)

is hereby

and the Court will address the merits of the same.

Although
relief,

Petitioner's motion to take notice that

Rule

district

59(e)

courts

does

not

in this

set

Circuit

that merit reconsideration of an order:

in controlling law;

forth

the

have

grounds

for

identified three

(1) an intervening change

(2) the availability of new evidence; and (3)

the need to correct clear error or prevent manifest injustice.

See,

e.g. , Ctr.

Supp.

2d 1330,

Nielsen,

P.A. ,

for Biological Diversity v.

1337
153

Hamilton,

(N.D. Ga. 2005); Sussman v. Salem,
F.R.D.

689,

694

(M.D.

Ga.

385

F.

Saxon &

1994) .

Here,

Petitioner is relying upon new evidence - a letter dated April
21,

2017

during

from his

the

court-appointed counsel

plea negotiations

to

with Petitioner,

the effect

the

that

Government

insisted that Petitioner was a career offender when in fact,

was

not.

Petitioner

therefore

argues

that

he

was

he

offered

ineffective assistance of counsel because his counsel erroneously
believed and therefore advised him as if he would be sentenced as

a career offender;

thus,

Petitioner took his chances at a jury

trial rather than plead guilty.

The new evidence,

counsel's

letter,

adds

nothing to

Report and Recommendation's analysis of this issue.

the

Petitioner

raised this ineffectiveness claim in his § 2255 petition, but as

pointed out by the United States Magistrate Judge, even assuming
Petitioner's counsel (as well as the Government) were wrong about
his status as a career offender, Petitioner was not prejudiced
thereby.

(See

Report

&

Recommendation,

Doc.

16,

at

8-10.)

Petitioner was offered a guideline range of 168 to 210 months'
imprisonment

during

plea

negotiations.

Had

counsel

offered

correct advice, Petitioner was subject to a 24 0 month-sentence.

(Id. at 8-9.)

Since Petitioner had already turned down the 168

to 210 months plea deal,

there is no

"reasonable probability"

that he would have accepted the deal if he knew he was actually

subject to 240 months.

(Id.

at 9-10.)

Accordingly,

evidence

that defense counsel or the Government misrepresented his career
offender status

Upon

the

reconsideration

is

irrelevant.

foregoing,
(doc.

37)

Petitioner's

Rule

is

Moreover,

DENIED.

59(e)

motion

because

for
this

Court has already determined that any appeal from the Judgment

would not be in good faith, and therefore he is not entitled to

proceed in forma pauperis (doc. 28, at 2) , Petitioner's motion to
proceed in forma pauperis (doc. 39) is DENIED AS MOOT,

ORDER ENTERED at Augusta, Georgia, this
May,

^^

day of

2017.

J. RANC^L HALL/ CHIEF JUDGE
UNITED/STATES DISTRICT COURT

-SQUHlERN DISTRICT OF GEORGIA