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)

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THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT FOR THE OF GEORGIA STATESBORO DIVISION TERRANCE GERARD STANTON, Petitioner, * * * * UNITED STATES OF AMERICA, Respondent. CV 615-064 (Formerly CR 612-018) * * 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

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