Tory v. United States District Court
Filing
33
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge James R. Spencer on 04/28/2015. Copy mailed as directed to Petitioner. (ccol, )
APR 2 8 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK. U.S. DISTRICT COURT
RICHMOND. VA
MICHAEL E. TORY, JR.,
Petitioner,
Civil Action No. 3:12CV905
V.
R.C. METHENA,
Respondent.
MEMORANDUM OPINION
Petitioner, a Virginia inmate proceeding pro se, initially submitted a "MOTION
REQUESTING AN AUTHORIZATION 0[R]DER TO FILE A SECOND WRIT OF HABEAS
CORPUS." (ECF No. 1.) Itappeared that Petitioner intended the Motion to challenge his
conviction in the Circuit Court for the City of Virginia Beach, Virginia. By Memorandum Order
entered on April 3,2013, the Court informed Petitioner that if he wished to file a 28 U.S.C.
§ 2254 petition, he should complete the appropriate forms for filing a 28 U.S.C. § 2254 petition
and return the same to the Court. (ECF No. 2, at 1-2.)' Thereafter, Petitioner completed and
returned the forms for filing a petition under 28 U.S.C. § 2254 challenging his convictions in the
Circuit Court of the City of Virginia Beach for aggravated malicious wounding anduse of a
firearm in the commission of a felony. (ECF No. 3.) By Memorandum Opinionand Order
entered on October 22, 2013, the Court denied the § 2254 Petition. Tory v. Methena,
No. 3;12CV905,2013 WL 5739790, at *1^ (E.D. Va. Oct. 22, 2013). The Court found the
relevant statute of limitations barred the action. Id. at *3—4. On January 28, 2014, the United
' The Court further informed Petitioner that if he wished to continue with the action in its
current form, within twenty (20) days of the date of entry thereof, he must identify the statute
that authorizes the present action.
States Court of Appeals for the Fourth Circuit denied a certificate of appealability. Tory v.
Mathena, 553 F. App'x 305 (4th Cir.), cert, denied, 134 S. Ct. 1564 (2014).
On April 3,2014, the Court received from Tory a motion seeking relief under Federal
Rule ofCivil Procedure 60(b)(4)«fe(6)^ ("Rule 60(b) Motion," ECF No. 23). Petitioner sought
relief under Rule 60(b) on the grounds that (1) the District Court lacked jurisdiction to consider
Petitioner's successive habeas petition; and, (2) the District Court denied Petitioner due process
of law by failing to consider Petitioner's Response (ECF No. 13) in granting the Motion to
Dismiss. By Memorandum Opinion and Order entered on October 10,2014, the Court denied
Tory's Rule 60(b) Motion. See Tory v. Mathena, No. 3:12CV905, 2014 WL 5107085, at *3
(E.D. Va. Oct. 10,2014). The matter is before the Court on Tory's requests for relief with
respect to the October 10,2014Memorandum Opinion and Order.
Initially, Petitioner seeks relief under Federal Rule of Civil Procedure 59(b). (ECF
No. 30, at 1.) That rule provides, "A motion for a new trial must be filed no later than 28 days
after the entry of judgment." Fed. R. Civ. P. 59(b). As no trial occurred in the present habeas
action, no relief under Rule 59(b) is authorized. See Reid v. EG &G Tech. Servs., Inc., No.
2:10cv448, 2011 WL 4829969, at *2 (E.D. Va. Oct. 12, 2011); cf. Peacock v. Bd. ofSchool
Comm'rs, 111 F.2d 210,213 (7th Cir. 1983) ("The most obvious requirement of 59(b) is that
^That rule provides, in pertinent part:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the courtmay relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(4) the judgment is void;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
there have been atrial...Accordingly, Petitioner's Motion for Relief under Rule 59(b)
(ECF No. 30)will be DENIED.
To the extent that Petitioner requests relief under Federal Rule ofCivil Procedure 59(e),
the United States Court ofAppeals for the Fourth Circuit recognizes three grounds for relief
under Rule 59(e): "(1) to accommodate an intervening change in controlling law; (2) to account
for new evidence not available at trial; or (3) to correct aclear error oflaw or prevent manifest
injustice." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser
Corp. V. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md. 1991); Atkins v. Marathon LeTourneau
Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). Petitioner fails to demonstrate that the Court
committed a clear error oflaw or any other basis for relief under Federal Rule ofCivil Procedure
59(e). Pac. Ins. Co. v. Am. Nafl Fire Ins. Co., 148 F.3d 396,403 (4th Cir. 1998) (emphasizing
that the reconsideration ofajudgment after its entry is an extraordinary remedy which should be
used sparingly). Despite his complaints to the contrary, Petitioner fails to demonstrate the Court
erred in dismissing his §2254 petition as barred by the relevant statute oflimitations or erred in
denying his Rule 60(b) Motion. Accordingly, Petitioner's Request for Relief under Rule 59(e)
(ECF No. 31) will be DENIED. The Court will deny acertificate ofappealability.
An appropriate Final Order will accompany this Memorandum Opinion.
Isl
James R. Spencer
Date:
,/ „Q /S
Richmond, Virginia
Senior U. S. District Jiukc
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