Jordan v. Lamb

Filing 28

ORDER denying 27 Motion for Reconsideration. Signed by Judge David R. Herndon on 7/21/17. (klh)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS VALDEZ JORDAN, Petitioner, v. No. 16-1297-DRH NICHOLAS LAMB, Respondent. MEMORANDUM and ORDER HERNDON, District Judge: Pending before the Court is Jordan’s motion to amend findings (Doc. 27). Based on the following, the Court DENIES these motions. In 2000, Valdez Jordan was convicted by a Madison County, Illinois, jury of armed robbery and first-degree murder. He was sentenced to concurrent prison terms of thirty and thirty-five years. On December 1, 2016, Jordan filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 (Doc. 1). He asserts the following grounds for habeas relief: 1) Prosecutorial misconduct consisting of (a) the police elicited incriminating statements from Jordan in violation of his right to counsel; (b) knowing use of false testimony before the grand jury; (c) knowing use of false testimony at trial; and (d) denial of due process and a fair trial by the “totality of prosecutorial misconduct.” 2) Ineffective assistance of trial counsel in that counsel (a) failed to file a motion to suppress statements obtained in violation of Jordan’s right to counsel; (b) failed to file a motion to quash indictment; (c) failed to file a motion in limine to exclude the testimony of Tamala Hamilton; (d) failed to seek a continuance of trial to locate witness Monique Kimple; and (e) denial of effective assistance by the “totality of counsel’s omissions and errors.” Page 1 of 5 On May 23, 2017, the Court entered a Memorandum and Order dismissing without prejudice his petition for failure to exhaust state remedies (Doc. 24) and Judgment reflecting the same was entered (Doc. 25). The Seventh Circuit has held that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to either Rule 59(e) or Rule 60(b). (7th Cir. 1994). See, e.g., Mares v. Busby, 34 F.3d 533, 535 Different time-tables govern these motions. Different standards also apply. Rule 59(e) permits a court to amend a judgment only if the movant demonstrates a manifest error of law or fact or presents newly discovered evidence that was not previously available. See, e.g., Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007). Rule 60(b) permits a court to relieve a party from an order or judgment based on such grounds as mistake, surprise or excusable neglect by the movant; fraud or misconduct by the opposing party; a judgment that is void or has been discharged; or newly discovered evidence that could not have been discovered within the 28-day deadline for filing a Rule 59(b) motion. However, the reasons offered by a movant for setting aside a judgment under Rule 60(b) must be something that could not have been employed to obtain a reversal by direct appeal. See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000). Although both Rules 59(e) and 60(b) have similar goals of erasing the finality of a judgment and permitting further proceedings, Rule 59(e) generally requires a Page 2 of 5 lower threshold of proof than does Rule 60(b). See Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (distinguishing the “exacting standard” of Rule 60(b) from the “more liberal standard” of Rule 59(e)). The purpose of a motion to alter or amend judgment under Rule 59(e) is to ask the court to reconsider matters “properly encompassed in a decision on the merits.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). “A Rule 59(e)motion will be successful only where the movant clearly establishes: (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (citation and quotation marks omitted). Relief pursuant to a Rule 59(e) motion to alter or amend is an “extraordinary remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008). A Rule 59(e) motion may be used “to draw the district court's attention to a manifest error of law or fact or to newly discovered evidence.” United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010). A manifest error “is not demonstrated by the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and quotation marks omitted). Furthermore, “a Rule 59(e) motion is not an opportunity to relitigate motions or present arguments, issues, or facts that could and should have been presented earlier. Page 3 of 5 Jordan’s motion was filed within the 28 day window, thus Rule 59(e) governs. The Court finds that Jordan is not entitled to relief under the Rule 59(e) standard. After reviewing the record again, the Court finds that Jordan identifies no manifest error of law, newly discovered evidence, fraud, mistake, or excusable neglect that dictates a different result. His motion merely takes umbrage with the Court’s previous ruling and rehashes old arguments that have been addressed by the Court. In rendering this Order and the Memorandum and Order dismissing without prejudice Jordan’s habeas corpus for failure to exhaust state remedies, the Court examined the record and the case law submitted by the parties and remains convinced of the correctness of its position. Thus, the Court denies Jordan’s motion. Accordingly, the Court DENIES Jordan’s motion (Doc. 27). If petitioner wishes to appeal the dismissal of the action or this Order, his notice of appeal must be filed with this court within thirty days of the date of this order. FED. R. APP. P. 4(a)(4). A motion for leave to appeal in forma pauperis (“IFP”) should set forth the issues petitioner plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If petitioner does choose to appeal and is allowed to proceed IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined based on his prison trust fund account records for the past six months) irrespective of the outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, Page 4 of 5 133 F.3d 464, 467 (7th Cir. 1998). It is not necessary for petitioner to obtain a certificate of appealability in an appeal from this petition brought under § 2241. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000). IT IS SO ORDERED. Signed this 21st day of July, 2017. Digitally signed by Judge David R. Herndon Date: 2017.07.21 09:34:32 -05'00' United States District Judge Page 5 of 5

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