Aguilar v. State of South Carolina
ORDER: IT IS ORDERED that Aguilar's untimely objections, which the court construes as a motion to alter or amend the judgment, docket number 26 , is denied. Signed by Honorable Henry M Herlong, Jr on 11/30/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ruben Silva Aguilar, #340998,
Warden, Lieber Correctional Institution,
C.A. No. 4:17-2257-HMH-TER
OPINION & ORDER
This matter is before the court on Ruben Silva Aguilar’s (“Aguilar”) untimely
objections, which the court treats 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
On October 3, 2017, Magistrate Judge Rogers recommended summarily dismissing
Aguilar’s 28 U.S.C. § 2254 petition. (R&R, ECF No. 15.) Objections to the Report and
Recommendation were due by October 17, 2017. The court granted an extension of time to file
objections to the Report and Recommendation by November 1, 2017. 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 summarily dismissed Aguilar’s 28 U.S.C. § 2254 petition in an order
dated November 13, 2017. (Nov. 13, 2017 Order, ECF No. 23.) Aguilar filed objections to the
Report and Recommendation, which he dated November 17, 2017, and were stamped received
by the prison mailroom on November 20, 2017. (Mot. Alter or Amend 1, Ex. 1 (Envelope),
ECF Nos. 26 & 26-1.) As a result, the objections are untimely. See Djenasevic 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 (4th Cir. Jun. 16, 2015) (unpublished)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). Aguilar offers no excuse or reason for his tardiness. Based on the foregoing, the
court construes Aguilar’s untimely objections as a motion to alter or amend the judgment.
Green v. Reynolds, Civil Action No. 5:15-4867-RMG, 2016 WL 4162634, at *1 (D.S.C. Aug. 4,
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).
Upon review, Aguilar does not identify an intervening change in controlling law, new
evidence, or any clear error of law made in the court’s earlier judgment. Rather, Aguilar repeats
his earlier arguments from his factual explanation regarding his untimeliness. (Factual
Explanation, ECF No. 9.) Based on the foregoing, the court finds that Aguilar has made no
showing of error in the court’s November 13, 2017 Order. Therefore, Aguilar’s motion is
It is therefore
ORDERED that Aguilar’s untimely objections, which the court construes as a motion to
alter or amend the judgment, docket number 26, is denied.
IT IS SO ORDERED.
s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
November 30, 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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