Sanchez-Juarez v. Stephens

Filing 18

ORDER denying 17 Motion for Certificate of Appealability. This Court does not issue a Certificate of Appealability and Petitioner's Motion is DENIED.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MOISES SANCHEZ-JUAREZ,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

February 19, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-173
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ORDER
Pending is Petitioner’s Motion for Reconsideration of this Court’s November 2,
2015 Final Judgment dismissing this action. (D.E. 15 and D.E. 17). The Court has
considered Petitioner’s Motion for Reconsideration, including his request for a certificate
of appealability, and it is DENIED. (D.E. 17).
Petitioner is currently incarcerated at the McConnell Unit in Beeville, Texas.
Proceeding pro se, he filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 on
April 15, 2015, challenging a disciplinary proceeding for the use or possession of alcohol.
(D.E. 1). On September 28, 2015, a Memorandum and Recommendation (“M & R”) was
entered recommending that Petitioner’s case be dismissed for failure to state a claim
because Petitioner was convicted of murder and is ineligible for mandatory supervision
and therefore, the sanctions resulting from the disciplinary proceeding did not infringe on
constitutionally protected interests. (D.E. 13). The M & R also recommended that
Petitioner’s request for appointment of counsel be denied because the issues raised in the
petition were not complex and Petitioner did not have an actionable claim. (D.E. 13, pp.

6-7).

The M & R further recommended that the Court not issue a certificate of

appealability. (D.E. 13, pp. 8-9).
On November 2, 2015, having received no objections, the Court entered an Order
Adopting the M & R and a Final Judgment. (D.E. 15 and D.E. 16). On November 12,
2015, Petitioner filed the pending Motion for Reconsideration of the Final Judgment
pursuant to Federal Rule of Civil Procedure 59(e), requesting a certificate of
appealability. (D.E. 17).
A Rule 59(e) motion calls into question the correctness of a judgment and to
prevail, the movant must show at least one of the following: 1) an intervening change in
controlling law, 2) new evidence not previously available, 3) the need to correct a clear or
manifest error of law or fact or to prevent manifest injustice. In re Benjamin Moore &
Co., 318 F.3d 626, 629 (5th Cir. 2002). “A motion to alter or amend the judgment under
Rule 59(e) ‘must clearly establish either a manifest error of law or fact or must present
newly discovered evidence’ and ‘cannot be used to raise arguments which could, and
should, have been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332
F.3d 854, 863-64 (5th Cir. 2003) (citation omitted).
Petitioner has not supplied any briefing to show how he is entitled to relief under
the parameters of Rule 59 or why a certificate of appealability should be issued.
Petitioner again alleges that he should be appointed counsel because his primary language
is Spanish and he would have filed objections had he been notified in Spanish. However,
as previously stated in the M & R, there is no constitutional right to counsel in federal
habeas proceedings. (D.E. 13 and D.E. 15); Elizalde v. Dretke, 362 F.3d 323, 329 (5th

Cir. 2004). Further, Petitioner does not have an actionable claim. (D.E. 13 and D.E. 15).
As such, this Court does not issue a Certificate of Appealability and Petitioner’s Motion
is DENIED. (D.E. 13, Pages 7-8; D.E. 15; and D.E. 17).
ORDERED this 19th day of February, 2016.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE