Sumter v. Wilson
ORDER: Based on the foregoing, the court finds that Sumter has made no showing of error in the court's January 5, 2017 Order. Therefore,It is therefore ORDERED that Sumter's motion to alter or amend the judgment, docket number 44 , is denied. Signed by Honorable Henry M Herlong, Jr on 01/17/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Eric Sumter, #278658,
Warden, Lieber Correctional Institution,
C.A. No. 4:16-0739-HMH
OPINION & ORDER
This matter is before the court on Eric Sumter’s (“Sumter”) untimely objections to the
Report and Recommendation of the magistrate judge, which the court construes as a motion to
alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
For the reasons set forth below, the court denies Sumter’s motion.
On December 13, 2016, Magistrate Judge Thomas E. Rogers, III, recommended
granting Respondent’s motion for summary judgment and dismissing Sumter’s 28 U.S.C.
§ 2254 petition. (R&R, ECF No. 36.) Objections to the Report and Recommendation were
due by December 28, 2016. After receiving no timely objections and determining that there
was “no clear error on the face of the record,” Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005), the court adopted the Report and Recommendation and granted
the Respondent’s motion for summary judgment in an order dated January 5, 2017. (Jan. 5,
2017 Order, ECF No. 41.) Sumter filed objections to the Report and Recommendation, which
he dated January 1, 2017, and were stamped received by the prison mailroom on January 5,
2017. (Mot. Alter or Amend 4, Ex.1 (Envelope), ECF Nos. 44 & 44-1.) Even accepting the
date on the objections, the objections are untimely. See Djensevic v. U.S. Dep’t of Justice, No.
15-6076, 604 Fed. App’x 328, 328 (Mem.) (4th Cir. Jun. 16, 2015) (unpublished) (holding that,
under the prison mailbox rule, the date the inmate delivers a legal document to prison officials
for mailing, rather than the date prison officials process the deposited mail, is the date of
filing). Sumter gives no excuse or reason for his tardiness, nor does the court find any cause
for his delay. Therefore, the court construes Sumter’s untimely objections as a motion to alter
or amend the judgment.
A motion to alter or amend the judgment under Rule 59(e) may be made on three
grounds: “(1) to accommodate an intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of law or prevent manifest
injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). “Rule 59(e) motions
may not be used, however, to raise arguments which could have been raised prior to the
issuance of the judgment . . . .” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998). “In general reconsideration of a judgment after its entry is an extraordinary remedy
which should be used sparingly.” Id. (internal citation and quotation marks omitted).
Sumter argues that the court’s finding that his counsel was not ineffective for conceding
during closing arguments that Sumter purchased drugs is contrary to Florida v. Nixon,
543 U.S. 175 (2004), and that the court erred in finding that Sumter failed to demonstrate there
was cause to consider his otherwise procedurally barred ineffective assistance of counsel
claims. (Mot. Alter or Amend J., generally, ECF No. 44.) Upon review, the court finds no
error in its January 5, 2017 Order adopting the Report and Recommendation. In the Report and
Recommendation, the magistrate judge accurately set forth and applied the law applicable to
Sumter’s ineffective assistance claims, including the law under Strickland v. Washington, 466
U.S. 668 (1984) and Nixon, and thoroughly summarized the facts relevant to his claims.
Further, the magistrate judge properly applied the test for excuse of procedural default set forth
in Martinez v. Ryan, 132 S. Ct. 1309 (2012). Based on the foregoing, the court finds that
Sumter has made no showing of error in the court’s January 5, 2017 Order. Therefore,
Sumter’s motion is denied.
It is therefore
ORDERED that Sumter’s motion to alter or amend the judgment, docket number 44, is
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
January 17, 2017
NOTICE OF RIGHT TO APPEAL
The Movant is hereby notified that he has the right to appeal this order within thirty
(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate
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