Smith v. Davis

Filing 50

ORDER denying 44 Motion to Amend; denying 46 Motion for Certificate of Appealability; granting 47 Motion for Leave to Appeal in forma pauperis.(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALPHONSO SMITH,
TDCJ # 01952701,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

May 02, 2019
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:16-CV-174
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ORDER

On March 28, 2019, the Court dismissed the habeas petition filed by Alphonso
Smith. Petitioner has filed an appeal (Dkt. 45) and several motions are pending in this
Court. The Court now ORDERS as follows:
1.

Petitioner filed a timely motion to alter or amend judgment (Dkt 44).

Federal Rule of Civil Procedure 59(e) serves the narrow purpose of allowing a party to
bring manifest errors or newly discovered evidence to the Court’s attention. See In re
Rodriguez, 695 F.3d 360, 371 (5th Cir. 2012); Ross v. Marshall, 426 F.3d 745, 763 (5th
Cir. 2005).

A motion for reconsideration “is not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered or raised before the
entry of judgment,” and an “unexcused failure” to present available evidence or
arguments before judgment “provides a valid basis for denying a subsequent motion for
reconsideration.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
Smith’s motion raises arguments regarding alleged Brady violations and the description
of the vehicle involved in the offense. Because all of these arguments were, or could
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have been, made before the judgment issued, see id., Petitioner’s motion to alter or
amend judgment (Dkt. 44) is DENIED.
2.

Petitioner’s request for a certificate of appealability (Dkt. 46) is DENIED

for the reasons stated in the Court’s prior denial (Dkt. 40).
3.

Petitioner has filed a motion for leave to proceed in forma pauperis on

appeal and a certified trust fund account statement (Dkt. 48). Because the motion and
supporting documentation indicate that Smith is unable to pay the $505.00 appellate
docketing fee, Petitioner’s motion to proceed in forma pauperis on appeal (Dkt. 47) is
GRANTED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 2nd day of May, 2019.
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George C. Hanks Jr.
United States District Judge

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