GOODWIN v. COOPER

Filing 43

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/22/13, Recommending that Petitioner's pro se Motion to Alter and Reconsider and Amend (Docket Entry 31 ) be denied and that Petitioner's pro se Objection (Docket Entry 41 ) be denied as moot. (Law, Trina)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARLON GOODWIN,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
ALVIN W. KELLER,
Respondent.

1:10CV679

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommended ruling on Plaintiff’s pro se
Motion to Alter and Reconsider and Amend the Judgment (Docket Entry
31).

For

the

reasons

that

follow,

the

Court

should

deny

Plaintiff’s instant Motion.
BACKGROUND
Plaintiff instituted this action by filing a pro se Petition
under 28 U.S.C. § 2254.

(Docket Entry 2.)

On September 16, 2011,

the Court (per Senior United States District Judge N. Carlton
Tilley,

Jr.,

adopting

the

recommendation

of

United

Magistrate Judge Wallace W. Dixon) denied the Petition.
Entry 25, 26; see also Docket Entry 22.)

States
(Docket

Petitioner thereafter

filed a Notice of Appeal on September 22, 2011. (Docket Entry 27.)
On September 30, 2011, Petitioner filed the instant Motion, along
with a supporting brief (Docket Entries 31, 32), Respondent gave

notice of his opposition (Docket Entry 33), and Petitioner replied
(Docket Entry 35). The appeal proceeded prior to any action by the
Court on the instant Motion and the United States Court of Appeals
for the Fourth Circuit entered an order of dismissal as follows:
[Petitioner] seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2006)
petition. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability.
See 28 U.S.C. § 2253(c)(1)(A) (2006). A certificate of
appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2006).
When the district court
denies relief on the merits, a prisoner satisfies this
standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the
constitutional claims is debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district
court denies relief on procedural grounds, the prisoner
must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right.
Slack, 529 U.S. at 484-85.
We have independently reviewed the record and
conclude that [Petitioner] has not made the requisite
showing.
Accordingly, we deny a certificate of
appealability and dismiss the appeal.
(Docket Entry 38 at 2.)

Petitioner subsequently filed a document

objecting to the failure of the Court to address his instant
Motion.

(Docket Entry 41.)1
DISCUSSION

Petitioner’s instant Motion and brief in support contend that,
pursuant to Federal Rule of Civil Procedure 59(e), the Court should

1

By taking action on the instant Motion, the Court will
render moot the above-cited Objection.
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alter or amend its Order and Judgment denying his Petition.
(Docket Entry 31 at 1; Docket Entry 32 at 5, 11, 22.)

“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).

Petitioner’s instant Motion was timely filed.

Accordingly,

However, because

Petitioner had filed a timely Notice of Appeal, see Fed. R. App. P.
4(a)(1)(A), before he filed the instant Motion, it was not clear
whether this Court had jurisdiction to rule on the instant Motion
at the time of its filing.

Compare Lewis v. Miller, 459 F. App’x

256, 257 (4th Cir. 2011) (“[The plaintiff] filed a notice in the
district court stating that he did not receive the report and
recommendation [of dismissal which the district court adopted].
However, because Lewis had already noted his appeal, the district
court did not have jurisdiction to act on that notice, which can be
construed as a motion for reconsideration pursuant to Fed. R. Civ.
P. 59(e).”), with Fed. R. App. P. 4 advisory committee note, 1993
Amend., Note to Paragraph (a)(4) (“A notice [of appeal] filed
before the filing of one of the specified motions [which include a
timely motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e)] or after the filing of [such] a motion but
before disposition of the motion is, in effect, suspended until the
motion is disposed of, whereupon, the previously filed notice
effectively places jurisdiction in the court of appeals.”).

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In any event, the Fourth Circuit now has relinquished its
jurisdiction

over

this

case

and,

therefore,

the

undersigned

Magistrate Judge has reviewed the instant Motion (along with its
supporting

brief),

Petitioner’s reply.

as

well

as

Respondent’s

response,

and

In essence, Petitioner asserts that the Court

should withdraw its denial of the Petition because the entry of
judgment against him, particularly without holding an evidentiary
hearing, constitutes “a clear error of law,” subject to correction
via Federal Rule of Civil Procedure 59(e).

(Docket Entry 32 at 5-

22.) Although this Court may alter or amend a judgment “to correct
a clear error of law,” Pacific Ins. Co. v. American Nat’l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998), Petitioner has shown no
such error. Instead, Petitioner simply has repeated the same basic
arguments he presented (or could have presented) in connection with
his Petition and the Court’s adjudication of Respondent’s summary
judgment motion.

(Compare Docket Entries 31, 32, with Docket

Entries 2, 17, 18, 24.)

“Rule 59(e) permits a court to alter or

amend a judgment, but it ‘may not be used to relitigate old
matters, or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.’”

Exxon Shipping Co.

v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright & A.
Miller, Federal Practice and Procedure § 2810.1, pp. 127–28 (2d ed.
1995)); accord Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.

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1993)

(“[M]ere

disagreement

does

not

support

a

Rule

59(e)

motion.”).2
CONCLUSION
Petitioner has failed to provide a valid basis under Federal
Rule 59(e) to alter or amend the Court’s prior Order and Judgment
dismissing his Petition.
IT IS THEREFORE RECOMMENDED that Petitioner’s pro se Motion to
Alter and Reconsider and Amend (Docket Entry 31) be denied and that
Petitioner’s pro se Objection (Docket Entry 41) be denied as moot.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 22, 2013

2

The determination by the Fourth Circuit, based on its own,
independent review, that reasonable jurists could not debate the
decision of this Court to deny the Petition and/or that the
Petition failed to present a debatable claim (see Docket Entry 38
at 2) confirms that this Court did not commit a clear error of law
by denying the Petition.
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