Leavitt v. Joyner

Filing 14

ORDER denying 11 Motion for Reconsideration. Court declines to issue a certificate of appealability. Signed by Chief Judge Frank D. Whitney on 8/9/2016. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:15cv38-FDW
OWEN D. LEAVITT,

)
)
Petitioner,
)
)
vs.
)
)
CARLTON B. JOYNER,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Owen D. Leavitt’s “Motion for
Reconsideration and Request to Expand the Record.” (Doc. No. 11.)
I.

BACKGROUND
On May 8, 2012, Petitioner was found guilty of malicious conduct by a prisoner after a

jury trial in the Superior Court of Alexander County. (Pet. 1-2, Doc. No. 1.) 1 Petitioner was
given a sentence of 20 to 24 months imprisonment to be served at the conclusion of his current
term of incarceration. (State’s Resp. to Pet. For Writ of Cert. 8, Doc. No 1.)
On May 7, 2013, the North Carolina Court of Appeals issued an unpublished decision
finding that Petitioner had received a trial free of prejudicial error. State v. Leavitt, 741 S.E.2d
925, 2013 WL 1899086 (N.C. Ct. App. 2013) (Table). According to Petitioner, he did not seek
further direct review.
Petitioner filed a Motion for Appropriate Relief in the Superior Court of Alexander

Page numbers in citations to documents filed in this case are those generated by the district court’s electronic filing
system.
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County on August 25, 2014. (Pet., supra, at 3.) It was denied on September 16, 2014. (State’s
Resp. to Pet. For Writ of Cert., supra, at 9.) Petitioner filed a petition for writ of certiorari in the
North Carolina Court of Appeals on December 29, 2014 (State’s Resp. to Pet. For Writ of Cert.,
supra), which, according to Petitioner was denied. Petitioner signed and placed his federal
habeas petition in the prison mailbox on March 2, 2015. (Pet., supra, at 48.)
After conducting an initial review required by Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, the Court determined that the Petition appeared
to be untimely. In accordance with the requirements set forth in Hill v. Braxton, 277 F.3d 701,
706 (4th Cir. 2002), the Court provided Petitioner an opportunity to explain why his § 2254
Petition should not be dismissed as untimely. (Doc. No. 5.) Petitioner filed a document titled
“Motion to Address Timeliness” (Doc. No. 6), which the Court construed as Petitioner’s
response to the Court’s Hill notice.
On November 20, 2015, the Court filed an Order dismissing the habeas Petition as
untimely pursuant to 28 U.S.C. 28 U.S.C. § 2244(d)(1)(A). (Doc. No. 9.) After reviewing
Petitioner’s response to the Hill notice, the Court concluded that Petitioner was not entitled to
statutory or equitable tolling.
II.

STANDARD OF REVIEW
Because Petitioner filed his motion for reconsideration within 28 days of entry of

judgment in this case, the Court will consider the motion pursuant to Federal Rule of Civil
Procedure 59(e). Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment.”). A district court “has the discretion to grant
a Rule 59(e) motion only in very narrow circumstances: ‘(1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct
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a clear error of law or to prevent manifest injustice.’” Hill, 277 F.3d at 708 (quoting Collison v.
Int'l Chem. Workers Union, 34 F.3d 233, 236 (4th Cir. 1994)). “Rule 59(e) motions may not be
used to make arguments that could have been made before the judgment was entered.” Hill, 277
F.3d at 708.
III.

DISCUSSION
In his Rule 59(e) motion, Petitioner challenges the Court’s holding that he is not entitled

to equitable tolling of the statute of limitations. (Doc. No. 11.) Equitable tolling requires a
showing “(1) that [the petitioner] has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” of filing a timely habeas petition. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
Petitioner does not contend that there has been an intervening change in the law requiring
an alteration or modification of the Court’s judgment; nor does he identify a clear error of law in
the Court’s Order dismissing his Petition. See Hill, 277 F.3d at 708. Although he alleges new
facts that he contends demonstrate he was prevented from filing a timely habeas petition, those
facts were known to him at the time he filed his habeas petition and response to the Court’s Hill
notice. For example, Petitioner asserts for the first time here that he did not file a timely habeas
petition due to his reliance on the advice of Prisoner Legal Services. (Rule 59(e) Motion 2-3,
Doc. No. 11; Exs. A-C, Doc. No. 11-1.) However, the dates on letters from Prisoner Legal
Services demonstrate that Petitioner could have included this argument, and Exhibits A-C, in his
response to the Court’s Hill notice. See Hill, 277 F.3d at 708 (“Rule 59(e) motions may not be
used to make arguments that could have been made before the judgment was entered.”). They
also demonstrate that when Prisoner Legal Services notified Petitioner that it would not represent
him, time remained under the federal statute of limitations for Petitioner to file a Motion for
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Appropriate Relief (“MAR”) in the state court, which would have tolled the limitations period.
(Ex. C, Doc. No. 11-1.) The remainder of Petitioner’s arguments and exhibits merely repeat or
support those raised in his response to the Hill notice, which the Court addressed in depth in its
Order dismissing the Petition (Doc. No. 9).
Finally, Petitioner has not presented a compelling argument that the Court should amend
or alter its judgment that the Petition is untimely in order to prevent a manifest injustice. See id.
Consequently, Petitioner’s Rule 59(e) motion shall be denied.
IT IS, THEREFORE, ORDERED that:
1. Motion for Reconsideration and to Expand the Record (Doc. No. 11) is DENIED;
2. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines
to issue a certificate of appealability as Petitioner has not made a substantial showing
of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 336-38 (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); Slack v. McDaniel, 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is debatable,
and that the petition states a debatably valid claim of the denial of a constitutional
right).

Signed: August 9, 2016

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