Jackson v. USA

Filing 23

ORDER denying 22 Motion for Reconsideration. Signed by District Judge Max O. Cogburn, Jr on 3/24/2014. (Pro se litigant served by US Mail.)(blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13cv390
[3:90cr85]
CECIL JACKSON,

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Petitioner,
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Vs.
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UNITED STATES OF AMERICA,
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Respondent.
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____________________________________)

ORDER

THIS MATTER is before the court on petitioner Cecil Edward Jackson’s Motion to
Reconsider Under Rule 59(e) (#22).
Before reaching the merits of Petitioner's motion, the court must first determine whether
the petitioner has presented a proper motion for reconsideration under Rule 59(e) or whether he
has merely presented a “successive application in [59(e)'s] clothing.” United States v. Winestock,
340 F.3d 200, 207 (4th Cir.2003) (analyzing motion filed under Rule 60(b)) (quoting Lazo v.
United States, 314 F.3d 571, 573 (11th Cir.2002) (per curiam)). While noting that “[t]here may
be no infallible test for making this distinction,” the Winestock Court offered the following
guidance to courts analyzing such motions:
[A] relatively straightforward guide is that a motion directly attacking the
prisoner's conviction or sentence will usually amount to a successive application,
while a motion seeking a remedy for some defect in the collateral review process
will generally be deemed a proper motion to reconsider. Thus, a brand-new, freestanding allegation of constitutional error in the underlying criminal judgment
will virtually always implicate the rules governing successive applications.
Similarly, new legal arguments or proffers of additional evidence will usually
signify that the prisoner is not seeking relief available under Rule 60(b) but is
instead continuing his collateral attack on his conviction or sentence.

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Winestock, 340 F.3d at 207 (citations and footnote omitted). In the present case, the petitioner's
motion to reconsider does not seek to remedy some defect in the collateral review process, but
rather seeks to re-argue the grounds raised in his original § 2255 motion. Accordingly, the court
concludes that petitioner's motion to reconsider is a second, unauthorized § 2255 motion and it
must be dismissed. See 28 U.S.C. § 2255(h).
Denial of Certificate of Appeal
The court finds that the petitioner has not made a substantial showing of a denial of a
constitutional right. See generally 28 U.S.C. § 2253(c)(2); see also Miller–El v. Cockrell, 537
U.S. 322, 336–38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (in order to satisfy § 2253(c), a
“petitioner must demonstrate that reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong”) ( citing Slack v. McDaniel, 529 U.S. 473, 484–85,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Petitioner has failed to demonstrate both that this
court's dispositive procedural rulings are debatable, and that his Motion to Reconsider states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484–85,
120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). As a result, the court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings for the United States
District Courts, 28 U.S.C. § 2255.

ORDER
IT IS, THEREFORE, ORDERED that petitioner’s Motion for Reconsideration (#22) is
DENIED.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, the Court declines to issue a certificate of appealability.

Signed: March 24, 2014

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