Ulloa v. Cain
ORDER & REASONS: denying 24 Plaintiff's Motion to Amend Judgment. Signed by Judge Carl Barbier on 7/21/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
N. BURL CAIN
ORDER & REASONS
Before the Court is a Motion to Amend Judgment (Rec. Doc. 24)
filed by Petitioner Lester Ulloa. Having considered the motion and
legal memorandum, the record, and the applicable law, the Court
finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
The facts pertaining to Petitioner’s conviction are set
forth in detail in the Report and Recommendations of Magistrate
Judge Karen Wells Roby. (Rec. Doc. 19 at 1-5.) Pertinent to the
instant motion, Petitioner asks the Court to amend its April 27,
2016 Order Adopting Judge Roby’s Report and Recommendations. (Rec.
Doc. 24.) Specifically, Petitioner asks that the Court find his
sentence “illegal, and that 40 years without any benefits of
parole, probation, or suspension of the sentence at all . . . is
[Petitioner] was charged with.” Id.
The Petitioner summarizes his arguments by providing that,
“The only issue Ulloa seeks review of is his illegal custody by
a[n] illegal, unauthorized state sentence that exceeds the penalty
provisions of La. R.S. 14:21.1(B).” Id. at 4. Petitioner argues
that his sentence without the benefits of parole, probation, or
suspension is “constitutionally illegal, harsh, and excessive in
violation of due process of the law.” Id. at 5.
“extraordinary remedy” used “sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to
alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003). Manifest error is defined as
“‘[e]vident to the senses, especially to the sight, obvious to the
understanding, evident to the mind, not obscure or hidden, and is
synonymous with open, clear, visible, unmistakable, indubitable,
Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15,
2009) (citations omitted); see also Pechon v. La. Dep't of Health
& Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest
error is one that “‘is plain and indisputable, and that amounts to
The Fifth Circuit has noted that “such a motion is not the
arguments that could have been offered or raised before entry of
judgment.” Templet, 367 F.3d at 478-79.
Nor should it be used to
“re-litigate prior matters that . . . simply have been resolved to
the movant’s dissatisfaction.” Voisin v. Tetra Techs., Inc., 2010
WL 3943522, at *2 (E.D. La. Oct. 6, 2010). Thus, to prevail on a
motion under Rule 59(e), the movant must clearly establish at least
one of three factors: (1) an intervening change in the controlling
law, (2) the availability of new evidence not previously available,
or (3) a manifest error in law or fact. Schiller, 342 F.3d at 567;
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (to win a Rule
59(e) motion, the movant “must clearly establish either a manifest
error of law or fact or must present newly discovered evidence”).
intervening change in the law since this Court’s April 27, 2016
discovered evidence previously unavailable. Thus, Petitioner must
“clearly establish either a manifest error of law or fact” to
succeed on his Rule 59(e) motion. Ross, 426 F.3d at 763. This
Court’s April 27, 2016 Order adopted the Report and Recommendations
(Rec. Doc. 19) of Magistrate Judge Roby. (Rec. Doc. 21.) The Report
and Recommendations provided:
In the instant case the [Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA)] one-year filing
period began to run on April 19, 2002, the day after
Ulloa’s conviction was final. The filing period
continued to run uninterrupted for one year, until
Monday, April 21, 2003, when it expired. Ulloa had no
properly filed state application for post-conviction or
other collateral review [. . .] pending during that time.
Ulloa did not file for post-conviction relief in the
state courts until six months after the AEDPA filing
period expired, when he submitted his first postconviction application to the state trial court on
October 16, 2003. [. . .] [T]his application was denied
at each level of the state court concluding with the
Louisiana Supreme Court’s ruling issued on April 8,
2005. Following that proceeding and accounting for his
subsequent filings, Ulloa allowed extended periods of
time, totaling no less than 2,673 days or just under
seven (7) years and four months, to lapse between April
8, 2005 and September 14, 2015, without pursuing state
post-conviction or other collateral review or federal
habeas corpus relief. His intermittent filings during
that time period were made well-after the expiration of
the AEDPA one-year filing period on Monday, April 1,
2003, and do not renew the filing period or provide him
any tolling benefits. See Scott v. Johnson, 227 F.3d
260, 263 (5th Cir. 2000).
(Rec. Doc. 19 at 9-10.) Further, the Report and Recommendations
found that equitable tolling was not applicable in this case. Id.
As explained by the Report, the “threshold questions on habeas
review under the AEDPA are whether the petition is timely and
whether the claim raised by the petitioner was adjudicated on the
merits in state court. . . .” (Rec. Doc. 6.) As noted above, the
because it was not filed within one year of the date his conviction
became final. (Rec. Doc. 19 at 7.) Petitioner presents no argument
that he filed a petition within one year of the date his conviction
became final. Consequently, Petitioner has not clearly established
a manifest error of law or fact.
Judgment (Rec. Doc. 24) is DENIED.
New Orleans, Louisiana, this 21st day of July, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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