Green v. Reynolds

Filing 36

ORDER re 35 Objection to Report and Recommendation. The constructive motion for reconsideration is DENIED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/4/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Henry Green,
Plaintiff,

v.
Cecilia Reynolds, Warden,
Defendant.

Civil Action No. 5: 15-4867-RMG

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ORDER

This matter is before the Court on Petitioner's untimely objections to the Report and
Recommendation of the Magistrate Judge, recommending that the petition for habeas relief
pursuant to 28 U.S.C. § 2254 be dismissed as untimely, which the Court has adopted. (Dkt. Nos.
30, 32.) The petition for habeas relief is untimely by almost seven years. (Dkt. No. 32 at 4.)
Petitioner's objections include a motion for a certificate of appealability, which the Court had
already denied. (ld. at 6.) The Court construes Petitioner's untimely objections, including the
motion for a certificate of appealability, as a motion for reconsideration of its order dismissing the
petition for habeas relief, which the Court denies for the reasons set forth below.
On December 1,2015, Petitioner mailed a present petition for habeas relief pursuant to 28
U.S.C. § 2254. On July 11, 2016, the Magistrate Judge recommended summary judgment for
Respondent because the petition is untimely. Objections to the Report and Recommendation were
due by July 28,2016. No timely objections to the Report and Recommendation were made, and
on July 29,2016, the Court adopted the Report and Recommendation and dismissed the petition
for habeas relief as untimely. Petitioner subsequently submitted his objections to the prison
mailroom on August 1,2016. (Dkt. No. 35-1.) Thus, his objections are untimely even with the
benefit ofthe prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988). The Court further

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observes that Petitioner's objections comprise 19 typed pages and approximately 7500 words, and
so his failure to meet the deadline apparently does not result from any circumstance beyond his
control, but rather from his decision to prioritize his own verbosity over compliance with the
Court's orders.
The Court construes Petitioner's untimely objections to the Report and Recommendation
of the Magistrate Judge as a motion to reconsider. Rule 59(e) of the Federal Rules of Civil
Procedure governs motions to alter or amend a judgment; however, the rule does not provide a
standard for such motions. The Fourth Circuit has articulated "three grounds for amending an
earlier judgment: (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." Pac. Ins. Co. v. Am. Nat'/ Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)(citing EEOC
v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997); 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, nor may they be used to argue a case
under a novel legal theory that the party had the ability to address in the first instance." Pac. Ins.
Co., 148 F.3d at 403 (internal citations omitted). Rule 59(e) provides an "extraordinary remedy

that should be used sparingly." Id. (internal citation omitted).
Petitioner's objections are largely incomprehensible; to the extent that they are
understandable, Petitioner simply repeats his argument that the habeas limitations period should
be equitably tolled because his attorney, Tara Shurling, misled him into thinking that she was going
to file a petition for rehearing on his behalf with the South Carolina Supreme Court. The
Magistrate Judge, after review of correspondence between Ms. Shurling and Petitioner, found no
merit in that argument, and the Court agreed with the Magistrate Judge's determination. (Dkt.

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Nos. 30, 32). As Petitioner brings no new evidence or argument to the Court's attention, his
constructive motion for reconsideration is DENIED.
AND IT IS SO ORDERED.

Richard Mark G rgel
United States District Court Judge

Y-,

August
2016
Charleston, South Carolina

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