Robles-Garcia v. United States of America

Filing 17

MEMORANDUM Opinion and Order denying 16 Pro Se Motion to Reconsider 13 Memorandum Opinion and Order on Motion to Vacate/Set Aside/Correct Sentence (2255) (CR10-4011-MWB), and 14 Judgment on Habeas Corpus Petition (See Order Text). No certificate of appealability will issue for any claim or contention in his Motion For Reconsideration. Signed by Judge Mark W Bennett on 3/11/2014. (copy w/nef to non-ecf filer) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GERMAN ROBLES-GARCIA,
No. C 13-4031-MWB
(No. CR 10-4011-MWB)

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S MOTION TO
RECONSIDER

___________________________
This case is before me on petitioner Robles-Garcia’s “[Motion For]
Reconsideration In Accordance With FcRp 59(e)” (docket no. 16), which was signed
November 7, 2013, postmarked November 12, 2013, and received and docketed by the
Clerk of Court on November 15, 2013. Robles-Garcia seeks reconsideration of my
October 11, 2013, Memorandum Opinion And Order Regarding Petitioner’s Motion
Pursuant To 28 U.S.C. § 2255 (docket no. 13), which denied his § 2255 Motion in its
entirety, and the Judgment (docket no. 14) entered pursuant to my Memorandum
Opinion.

The respondent filed no response to Robles-Garcia’s Motion For

Reconsideration.
Robles-Garcia requests reconsideration of only part of my Memorandum Opinion,
the part in which I rejected his claim that his trial counsel provided ineffective assistance
by failing to inform him of a plea offer from the prosecution. In his original § 2255
Motion, he argued that he would have accepted the plea offer rather than proceeding to
trial and that doing so would have resulted in at least a two-point reduction in his sentence
for acceptance of responsibility. In response to Robles-Garcia’s § 2255 Motion, the
respondent argued that there was never a plea offer made in the case, and trial counsel

provided an affidavit that no formal plea offer was ever made. I concluded that RoblesGarcia had not established that his trial counsel failed in any duty to advise him of a plea
offer, simply because Robles-Garcia had failed to establish that there ever was a plea
offer to be presented to or considered by him. For that reason, I concluded that RoblesGarcia had not shown deficient performance on the part of his trial counsel and that his
claim failed. Memorandum Opinion (docket no. 13) at 14-15. I also denied a certificate
of appealability on any claim in Robles-Garcia’s § 2255 Motion. Id. at 15-16.
In his Motion For Reconsideration, Robles-Garcia now claims that there was a
plea offer for ten years of imprisonment and that his trial counsel misadvised him to go
to trial, and lose the two-point reduction in his sentence for acceptance of responsibility,
instead of taking the plea offer. He argues, and offers a statement under oath averring,
that there was, in fact, a plea offer made to him during pre-trial proceedings, that he
actually saw it, and, indeed, that the interpreter translated the “plea deal” to him in
Spanish.
As the Eighth Circuit Court of Appeals has explained, “The Federal Rules of Civil
Procedure do not account for ‘motions to reconsider.’” Nelson v. American Home Assur.
Co., 702 F.3d 1038, 1043 (8th Cir. 2012); accord Hallquist v. United Home Loans, Inc.,
715 F.3d 1040, 1044 n.2 (8th Cir. 2013) (“[T]he Federal Rules of Civil Procedure do
not contemplate a ‘motion to reconsider.’”); Ackerland v. United States, 633 F.3d 698,
701 (8th Cir. 2011) (“[W]e have discouraged the use of a self-styled motion to reconsider
‘that is not described by any particular rule of federal civil procedure.’” (quoting Sanders
v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988)). Nevertheless, courts “typically
construe such a filing as a Rule 59(e) motion to alter or amend the judgment or as a Rule
60(b) motion for relief from judgment.” Ackerland, 633 F.3d at 701 (citing Auto Servs.
Co. v. KPMG, L.L.P., 537 F.3d 853, 855 (8th Cir. 2008)); accord Hallquist, 715 F.3d
at 1044 n.2 (also noting that “motions to reconsider” are “treated as a motion to alter or
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amend judgment under Federal Rule of Civil Procedure 59(e)”) (citing Auto Servs Co.,
537 F.3d at 855)). “While it is sometimes difficult to discern whether a motion to
reconsider arises under Rule 59(e) or Rule 60(b),” as in Ackerland, “the distinction makes
no difference here.” Id.
Rule 59(e) provides only that “[a] motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.” FED. R. CIV. P. 59(e). As
to grounds for such relief, the Eighth Circuit Court of Appeals has explained that Rule
59(e) is not the proper vehicle to raise new arguments. See Concordia College Corp. v.
W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir. 1993); Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 414 (8th Cir. 1988). Rather, its proper, limited purpose is
“correcting ‘manifest errors of law or fact or to present newly discovered evidence.’”
Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d
1284, 1286 (quoting Hagerman, 839 F.2d at 414); accord United States ex rel. Raynor
v. National Rural Utils. Co-op. Fin. Corp., 690 F.3d 951, 948 (8th Cir. 2012) (“‘Rule
59(e) motions serve the limited function of correcting manifest errors of law or fact. . . .’”
(quoting United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th
Cir. 2006)). Even though a Rule 59(e) motion may be based on “newly discovered
evidence,” it “cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of judgment.” Id.
(citing Hagerman, 839 F.2d at 414). Rule 59(e) also cannot be used to assert a completely
different legal theory. Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir. 2000). A
district court has “broad discretion” in deciding whether or not to grant a Rule 59(e)
motion. Raynor, 690 F.3d at 948.
Rule 60(b)(2) expressly provides that a court may relieve a party from a final
judgment, order, or proceeding based on “newly discovered evidence,” but such “newly
discovered evidence” must be evidence “that, with reasonable diligence, could not have
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been discovered in time to move for a new trial under Rule 59(b).” FED. R. CIV. P.
60(b); Nelson, 702 F.3d at 1043 (“Rule 60 does allow the district court to relieve a party
from a judgment or order if the party offers ‘newly discovered evidence.’” (quoting
FED. R. CIV. P. 60(b)(2))); Kaufman v. Van Santen, 696 F.2d 81, 83 (8th Cir. 1983)
(finding that the district court did not abuse its discretion in denying a Rule 60(b) motion
when the proffered “new evidence” was “readily and equally” available to the appellant
prior to trial). Denial of a Rule 60(b) motion also is reviewed only for “abuse of
discretion.” Nelson, 702 F.3d at 1043.
Robles-Garcia asserts that his Motion For Reconsideration is pursuant to Rule
59(e) of the Federal Rules of Civil Procedure. Assuming, without deciding, that his Rule
59(e) motion was timely—because Robles-Garcia was incarcerated and his motion was
signed, albeit neither mailed, received, nor filed, within 28 days of the judgment that
Robles-Garcia seeks to alter or amend—Robles-Garcia is not entitled to relief under Rule
59(e).

Robles-Garcia purports to base his Motion For Reconsideration on “new

evidence” that there was, in fact, a plea offer and that his trial counsel advised him not
to take it, but this “new evidence” was clearly known to Robles-Garcia before I entered
my Memorandum Opinion denying his § 2255 Motion. Innovative Home Health Care,
Inc., 141 F.3d at 1286 (explaining that this is an improper basis for relief on a Rule 59(e)
motion). Indeed, his present argument is not just based on “new evidence,” but is based
on an entirely different legal theory of ineffective assistance of counsel—misadvice about
whether or not he should take a plea offer, instead of his original claim of failure to
advise him of a plea offer—which is also an improper basis for relief under Rule 59(e).
Id.; accord Schoffstall, 223 F.3d at 827; Concordia College Corp., 999 F.2d at 330.
Thus, as a motion based on Rule 59(e), Robles-Garcia’s Motion For Reconsideration is
denied.

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It is also denied as a motion based on Rule 60(b)(2), even though that rule
expressly provides for relief from a judgment based on “newly discovered evidence.”
FED. R. CIV. P. 60(b)(2). The “new” evidence that Robles-Garcia relies on plainly is
not evidence that “with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b),” but evidence that was known to him at that time.
FED. R. CIV. P. 60(b); Nelson, 702 F.3d at 1043 (“Rule 60 does allow the district court
to relieve a party from a judgment or order if the party offers ‘newly discovered
evidence.’” (quoting FED. R. CIV. P. 60(b)(2))); Kaufman, 696 F.2d at 83 (finding that
the district court did not abuse its discretion in denying a Rule 60(b) motion when the
proffered “new evidence” was “readily and equally” available to the appellant prior to
trial).
Furthermore, because Robles-Garcia has failed to make a substantial showing that
any issue raised in his Motion For Reconsideration is debatable among reasonable jurists,
that a court could resolve any such issue differently, or that any such issue deserves
further proceedings, a certificate of appealability on his Motion For Reconsideration is
also denied. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537 uct 322, 335-36;
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).
THEREFORE, petitioner Robles-Garcia’s “[Motion For] Reconsideration In
Accordance With FcRp 59(e)” (docket no. 16) is denied. No certificate of appealability
will issue for any claim or contention in his Motion For Reconsideration.
IT IS SO ORDERED.
DATED this 11th day of March, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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