Jordan v. Lamb
Filing
45
ORDER denying 44 Motion for Reconsideration. Signed by Judge David R. Herndon on 7/16/2018. (klh)
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 for relief from Judgment and
Order pursuant to Federal Rules of Civil procedure [sic] 60. (b), (2), (6) [sic] (Doc.
44). Based on the following, the Court DENIES the motion.
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 asserted 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
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witness Monique Kimple; and (e) denial of effective assistance by the “totality of
counsel’s omissions and errors.”
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). Thereafter, the Court denied
Jordan’s motion for reconsideration on July 21, 2017 (Doc. 28). Jordan then
filed a notice of appeal on August 18, 2017 (Doc. 30). On May 14, 2018, the
Seventh Circuit Court of Appeals filed its mandate dismissing Jordan’s appeal for
lack of jurisdiction specifically finding:
Valdez Jordan has filed a notice of appeal from the dismissal of
his petition under 28 U.S.C. § 2254 and an application for certificate
of appealability. The district court denied Jordan’s request to excuse
his failure to exhaust state remedies and dismissed the petition
without prejudice. Such a dismissal is not a final, appealable order
under 28 U.S.C. § 1291. See Gacho v. Butler, 792 F.3d 732, 735-36
(7th Cir. 2015); Moore v. Mote, 368 F.3d 754, 755 (7th Cir. 2011).
Accordingly, we DISMISS the appeal for lack of jurisdiction. All
pending motions, including the motions to proceed in forma pauperis
and for appointment of counsel, are DENIED.
(Doc. 43-1). Still undeterred, Jordan filed the Rule 60 motion on May 23, 2018
arguing that newly discovered evidence has developed since the Court dismissed
the case (Doc. 44).
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.
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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
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)).
Jordan’s motion was filed outside the 28 day window, thus Rule 60 governs.
The Court finds that Jordan is not entitled to relief under the Rule 60 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
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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. Again Jordan takes issue with his appointed counsels.
In a nutshell,
Jordan argues that Mr. Hale’s representation has rendered the state court
proceedings void and that since Mr. Hale’s retirement he has had two new attorneys
and thus the proceedings have been delayed. As stated in the Court’s previous
Memorandum and Order: “However, because petitioner has no constitutional right
to counsel in state court proceedings, he has no constitutional right to effective
assistance of counsel. Counsel’s performance cannot be the basis for finding that
the delay in state court proceedings is inordinate and unjustifiable. Sceifers, 46
F.3d 701, 704 (7th Cir. 1995).” (Doc. 24, p. 7).
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. 44).
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
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(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,
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.
Judge Herndon
2018.07.16
11:49:45 -05'00'
United States District Judge
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