Cephus v. USA

Filing 11

OPINION AND ORDER as to Justin Phillip Cephus, denying 8 MOTION for Reconsideration and denying 2 MOTION for Reconsideration.. Signed by Judge Rudy Lozano on 4/14/14. cc:dft (kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,

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Plaintiff/Respondent,
vs.
JUSTIN PHILLIP CEPHUS,
Defendant/Petitioner.

NO. 2:09-cr-43
2:13-cv-396

OPINION AND ORDER
This matter is before the Court on the: (1) “Motion for
Reconsideration,” filed by Defendant, Justin Cephus, on March 3,
2014

(DE

#530);

(2)

“Motion

for

Reconsideration,”

filed

by

Defendant, Justin Cephus, on March 24, 2014 (DE #538); and (3)
Motion of Clarification, filed by Defendant, Justin Cephus, on
April 7, 2014 (DE #541).

For the following reasons, both motions

for reconsideration (DE ## 530, 538) are DENIED. To the extent the
Motion for Clarification (DE #541) requests a 90 day extension to
file another memorandum in support of his section 2255 Petition, it
is also DENIED.

BACKGROUND
Under section 2255, Justin Cephus had one year from the date
on which “the judgment of conviction [became] final” in which to
bring a post conviction motion.

28 U.S.C. § 2255(f)(1).

The

Supreme

Court

denied

Justin

Cephus’

certiorari on November 5, 2012.

petition

for

a

writ

of

See Justin Cephus v. United

States, Appeal No. 12-6626, 133 S. Ct. 588 (Mem) (Nov. 5, 2012).
Thus, Justin Cephus had until November 5, 2013, to file his section
2255.

Cephus did indeed file his Section 2255 motion on November

5, 2013 (DE #494), and he also filed a motion in which he argued he
needed additional time to file a memorandum of law in support of
the grounds set forth in his Section 2255 Petition.

(DE #495.)

Cephus claimed he was just receiving all of his court documents he
needed for his memorandum due to new rules on receiving legal
documents in the BOP.

The Government objected, arguing Cephus

should not be afforded the protection provided by 28 U.S.C. §
2255(f)(2), without identifying the rule change, explaining when it
took effect, explaining what documents he needed, and why they
support his Section 2255 Petition.

(DE #497.)

In its order dated

December 10, 2013, this Court noted that while the Government may
technically be correct, because Cephus timely filed his 2255
Motion, and filed his request for an extension of time to file his
memorandum on the same day, in the best interests of justice, the
Court granted the extension of time for Cephus to prepare his
memorandum of law in support of his motion. (DE #506.)

Cephus

requested a 60-day extension, and this Court granted the request,
making the deadline for his memorandum in support January 5, 2014.
Cephus filed his memorandum in support of his section 2255

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petition on January 13, 2014.

(DE #512.)

Then, in two motions

dated January 21, 2014, and January 22, 2014 (DE ##516, 517),
Cephus asked for leave to withdraw his memorandum of law and to
replace it with a new memorandum, which he claimed he needed an
additional

180

days

to

prepare.

Cephus

stated

he

was

just

receiving Court documents, and that inmates are only permitted to
review certain Court documents in the presence of their Unit Team
Staff, which requires scheduling.

(DE #517.)

The Government

opposed the request, noting that Cephus did not specify the
document or groups of documents to which he just received access.
(DE #523.)
In an order dated February 18, 2014 (DE #525), this Court
denied Cephus’ motion to withdraw and re-file his memorandum in
support of his section 2255 petition within 6 months.
currently moves to reconsider this Order (DE #525).

Cephus

In the order,

this Court noted, among other things, that Cephus did not explain
how suddenly having access to new documents will enable him to make
or support an argument not previously raised or supported in his
Court filings, or why he needed six more months to prepare another
memorandum.

Additionally, the Court found requiring inmates to

schedule an appointment to see certain materials would not alone
rise to the level of a Constitutional or legal deprivation.
Ultimately,

the

Court

did

not

believe

Cephus

equitable tolling requirements of § 2255(f)(2).

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satisfied

the

The Court already

gave Cephus the benefit of the doubt and granted his requested 60day extension of time in which to file his memorandum - it did not
believe an additional six months to prepare a different memorandum
was warranted.

DISCUSSION
"Motions for reconsideration serve a limited function:
correct

manifest

errors

discovered evidence."

of

law

or

fact

or

to

present

to

newly

Keene Corp. v. Int'l Fid. Ins. Co., 561 F.

Supp. 656, 665 (N.D. Ill. 1982).

A motion for reconsideration

performs a valuable function where:
[T]he Court has patently misunderstood a
party, or has made a decision outside the
adversarial issues presented to the Court by
the parties, or has made an error not of
reasoning but of apprehension.
A further
basis for a motion to reconsider would be a
controlling or significant change in the law
or facts since the submission of the issue to
the Court. Such problems rarely arise and the
motion to reconsider should be equally rare.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan
Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).
However, motions to reconsider "cannot in any case be employed
as a vehicle to introduce new evidence that could have been adduced
during the pendency of the [motion]."

Caisse Nationale De Credit

Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).

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In other words, the parties cannot introduce evidence previously
available, but not used in the prior proceeding.

See Roche

Diagnostics Corp. v. Bayer Corp., 247 F. Supp. 2d 1065, 1068 (S.D.
Ind. 2003).

Motions for reconsideration are also not vehicles for

"rehashing previously rejected arguments or arguing matters that
could have been heard during the pendency of the previous motion."
Caisse, 90 F.3d at 1264 (citations omitted).
Here, Cephus largely rehashes arguments he already made to the
Court.1

First, he argues that this Court did not consider the

facts submitted in his reply brief (DE #526, filed on February 18,
2014, the same day as this Court’s order (DE #525).)

This Court

has specifically reviewed this reply memorandum, and it would not
have changed the outcome of this Court’s refusal to allow Cephus to
retract his section 2255 memorandum and file another one within 6
months.2

In his reply memorandum, Cephus gives more detail about

the USP Tuscon policy that required inmates to request permission
and to schedule time to review documents, for example the P.S.I.
1

The first motion for reconsideration asks the Court to
reconsider “and/or notice of appeal.” (DE #530, p. 1.)
The
Clerk docketed the appeal, which is case number 14-1505 in front
of the Seventh Circuit. This order deals with Cephus’ request
for reconsideration.
2

In his Motion for Clarification (DE #541), Cephus claims
“in the interim past 30 days the defendant has been able to
review certain documents and is simply awaiting the redacted
grand jury transcripts from counsel, which the defendant will
have within 28 days and thus the defendants initial request for a
180 day extension is now a request for a 90 day extension.” (DE
#541, p. 3.)
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(DE #526, p. 2.)

Cephus claims he was “on schedule” for this

policy until he had a recent transfer, and now has a new case
manager and counselor which were replaced on March 15, 2014.

Id.

28 U.S.C. § 2255(f)(2) governs the period of time prisoners
have to file a Section 2255 petition if their filing is somehow
impeded by the Government.

See 28 U.S.C. § 2255(f)(2).

It

provides prisoners the “benefit of a full year...” after the
alleged impediment caused by the government is removed.
United States, 657 F.3d 604, 607 (7th Cir. 2011).

Ryan v.

In the instant

motions for reconsideration, Cephus claims “Government action is
the sole of the delay” and contends that the presentence reports
and other documents were withheld by staff, and required making an
appointment, and that the prison was on lockdown for 7 days.
#530, pp. 2-3; DE #538, pp. 2-3.)

(DE

As the Court noted in United

States v. Davis, No. 13 C 50360, 2014 WL 1047760, at *4 (N.D. Ill.
Mar. 18, 2014) (quoting Moore v. Battaglia, 476 F.3d 504, 506-07
(7th Cir. 2007)), “[w]hile the Seventh Circuit has not expressly
defined what constitutes an ‘impediment’ for the purposes of
Section 2255(f)(2), it has determined that ‘an impediment must
prevent a prisoner from filing his petition.’”

In this case,

Cephus timely filed his section 2255 Petition, and after requesting
and receiving a 60-day extension from this Court to file an
accompanying memorandum, did indeed file a 12-page memorandum of
law setting forth three issues in detail, and including legal

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argument and many legal citations. (See DE #512.) Thus, the Court
does not believe that the prison policy requiring inmates to
schedule a time to review documents, or the fact that Cephus’ case
manager and counselor were being replaced on March 15, 2014 (well
after

the

deadline

for

filing

unconstitutional impediment.

his

petition),

constitute

an

Accordingly, the Court still finds

that 28 U.S.C. § 2255 is not applicable to Cephus.
In

his

motions

to

reconsider,

Cephus

also

argues

that

“equitable tolling requires satisfaction of justification for
delay.”

(DE #530, p. 3; DE #538, p. 3.)

Equitable tolling is only

available when a habeas petitioner can show he has been “pursuing
his rights diligently and some extraordinary circumstance stood in
the way of filing a petition.”

Davis, 2014 WL 1047760, at *6

(citing Weddington v. Zatecky, 721 F.3d 456, 464 (7th Cir. 2013)).
As the Court stated in Nolan, “[e]quitable tolling of the statute
of limitations is such exceptional relief that we have yet to
identify a circumstance that justifies equitable tolling in the
collateral relief context.”
484 (7th Cir. 2004).
965,

967-68

circumstances

(7th
where

Nolan v. United States, 358 F.3d 480,

Additionally, in Modrowski v. Mote, 322 F.3d
Cir.

2003),

equitable

the

tolling

Seventh
did

Circuit

not

apply:

listed
(1)

prisoner’s lack of access to trial transcript; (2) lack of response
from attorney; (3) language barrier; (4) lack of legal knowledge;
(5) transfer between prisons; (6) unclear law; (7) death of
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attorney’s father; (8) attorney negligence; and (9) attorney’s
incapacity. Requiring prisoners to make appointments in advance to
review paperwork, the change of a case manager and counselor, and
an alleged 7-day lockdown, do not justify equitable tolling.

To

the extent Cephus requests a hearing on this matter, the request is
also denied.

CONCLUSION
For the following reasons, both motions for reconsideration
(DE ##530, 538) are DENIED.

The Motion for Clarification (DE

#541), to the extent it requests an additional 90 days to file
another memorandum in support of his Section 2255 Petition, is also
DENIED.

DATED: April 14, 2014

/s/ RUDY LOZANO, Judge
United States District Court

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