Lowe v. Commonwealth of Virginia Dept. of Corrections

Filing 53

MEMORANDUM OPINION. SEE OPINION for complete details. Signed by Magistrate Judge Roderick C. Young on 03/19/2018. Copy of Memorandum Opinion mailed to Petitioner as directed.(ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINI A
Richm ond Division

MAR 2 0 20IB

MARK LOWE,
CLERK, U S 1 ~, r11C1 COURT
.i,
RlCH l.iO,JO. VA

Petitioner,
V.

Civi l Action No. 3: 17CV292

COMMONWEALTH OF VIRGINIA,
Respondent.

MEMORANDUM OPINION
Mark Lowe, a Virginia state prisoner proceeding pro se, brings thi s petition pursuant to
28 U.S.C. § 2254 (''§ 2254 Petition," ECF No. I) chall engin g hi s conv iction in the Circuit Court
or the County of Chesterfield, Virginia (hereinafter, "Circuit Court"). By Memorandum Opinion
and Order entered on January 22, 20 18, the Court granted Respondent's Moti on to Dismiss,
denied Lowe·s § 2254 Petition, dismissed the action, and denied a certificate of appealabili ty
(""CO/\"). (ECF

os. 43, 44.) On January 26, 2018, the Cou11 received Lowe's notice of appeal,

and accompanying .. MOTION FOR CERTIFICATION OF APPEAL" and "MOTION FOR
ORDER OF DES IGNATION OF RECORD ON APPEAL." (ECF Nos. 47, 48.) If Lowe wishes
to cha ll enge this Court's denial of a COA, he should file such a cha llenge with the United States
Court of Appea ls for the Fourth Circu it. Local Rul e for the United States Court or Appeals for
the Fourth Circuit 22(a)( I)(A) contemplates that review or a district court 's den ial of a COA
should be directed lo the fourth Circuit not the district court. 4th Cir. Loe. R. 22(a)( 1)(A) (when
"the district coun has not granted a [COA] ... appell ant may subm it a req uest for a [COA] with
the Court or Appeals specifying the issues on which the appellant seeks authorization to appeal
and giving a statement or the reasons why a certificate should be issued"). Accordingly, Lowe's
"MOTION FOR CERTIFICATION OF APPEAL (ECF No. 47) is DEN IED.

Second, to the extent that Lowe desires the ..entire file" be sent to the Fourth Circuit, the
Fourth Circuit will request the records it needs to review his case. Lowe's .. MOTION FOR
ORDER OF DESIGNATION OF RECORD ON APPEAL" (ECF No. 48) is DENIED.
On January 31, 2018, the Court received .;OBJECTIONS TO MAGISTRATE REPORT
AND RECOMMENDATIONS." (ECF No. 51.) 1 As a preliminary matter, the Court did not
enter a Report and Recommendation and therefore there is nothing to which Lowe can object.
However, because the Court received these Objections within twenty-eight days after the entry of
the January 22, 2018 Memorandum Opinion and Order, the Court will construe this submission
as a motion filed pursuant to Federal Rule of Civil Procedure 59(e) ("Rule 59(e) Motion," ECF
No. 51). See MLC Auto., LLC v. Town ofS. Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (filings
made within twenty-eight days after the entry of judgment construed as Rule 59(e) motions
(citing Dove v. CODESCO, 569 F.2d 807,809 (4th Cir. 1978))).
The Fourth Circuit has recognized 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 a clear error of law 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)). The Court construes Lowe's submission as a request for relief under Rule
59(e) to correct a clear error of law.
Lowe's Rule 59(e) Motion is rambling and is not clearly directed at a specific conclusion
of the Court. Lowe first argues that the Court erred when it found that Lowe had defaulted his
claims and that the district court should have conducted an evidentiary hearing. (Rule 59(e) Mot.
1

The Court employs the pagination assigned by the CM/ECF docketing system for citations to
this submission.
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1, 3.)

While Lowe cites several cases to suggest that he did not default his claims, his

meandering argument makes little sense. Lowe fails to demonstrate any clear error of law in the
conclusion that his claims are defaulted and barred from review here. The remainder of Lowe's
Rule 59(e) Motion appears to re-argue his claims from his § 2254 Petition and to continue to
advance allegations about unrelated conspiracy theories.

(See, e.g., ECF No. 51, at 5, 6.)

Because Lowe fails to identify any clear error of law in the Court's conclusions, he is not entitled
to Rule 59(e) relief. Accordingly, his Rule 59(e) Motion (ECF No. 51) will be DENIED.
Finally, on February 6, 2018, Lowe filed a "Motion to Amend Motion for Set Aside"
("Motion to Amend," ECF No. 52.) The Court construes this submission as raising additional
arguments for Rule 59(e) relief.

In the Motion to Amend, Lowe takes issue with Virginia

Supreme Court Rule 5:7 and argues that the Commonwealth has "tricked [him] into filing [an]
incomplete habeas corpus petition[]" and that there are "no published rules for the alleged
'appeal of petition of habeas corpus'." (Id. at 1-2.) Lowe already advanced this argument in his
§ 2254 Petition, and the Court found that it failed to excuse his default. (ECF No. 43, at 8.) As

clearly explained in the Court's Memorandum Opinion, Lowe appealed the denial of his state
habeas petition by the Circuit Court to the Supreme Court of Virginia. Therefore, Supreme
Court Rule 5:17(c)(l)(iii) governed his filing, and Lowe was required to identify appropriate
assignments of error. (ECF No. 43, at 3-4, 6-7.) Contrary to Lowe's belief, this Rule is clearly
published. Lowe again fails to identify any clear error of law, and his Motion to Amend (ECF
No. 52) will be DENIED.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability ("COA''). 28 U.S.C. § 2253(c)( 1)(A). A COA will not issue
unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c}(2). A petitioner satisfies this requirement only when ..reasonable jurists could debate

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whether (or, for that matter, agree that) the petition shou ld have been resolved in a different
manner or that the issues presented were ·adequate to deserve encouragement to proceed
further:" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (q uoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 ( 1983)). Lowe fails to meet this standard. A certificate of appealability will be

DENIED.
An appropriate Final Order wil l accompany this Memorandum Opinion.

Isl
Roderick C. Young
United States Magistrate Jud

Date: March ~ , 20 18
Richmond, Virginia

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