Talley v. United States of America

Filing 220

MEMORANDUM OPINION AND ORDER denying Petitioner's 219 MOTION to Alter or Amend Judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Signed by Judge Robert C. Chambers on 9/8/2014. (cc: attys; any unrepresented parties) (skm) Modified text on 9/8/2014 to reflect that #219 Motion was denied (cbo).

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

NORMAN L. TALLEY,
Petitioner,
v.

CIVIL ACTION NO. 3:13-01754
(CRIMINAL ACTION NO. 3:10-00038-01)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending is Petitioner’s Motion to Amend or Alter Judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure. ECF No. 219. 1 The Motion requests that the Court amend its
Memorandum Opinion and Order entered August 7, 2014, which adopted the portion of the
Magistrate’s Proposed Recommendations and Findings (“PF&Rs”), ECF No. 215,
recommending that this Court deny as untimely the petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 202, and grant the Government’s
Motion to Deny [the Petitioner’s Motion] as Untimely, ECF No. 209. ECF No. 218. For the
reasons explained below, the Court DENIES this motion.
I. Background
On November 2, 2010, after a two-day trial, a jury found petitioner, Norman L. Talley,
guilty of 1) conspiring to distribute 50 grams or more of cocaine base and a quantity of heroin, in
violation of 21 U.S.C. § 846, 2) aiding and abetting the possession with intent to distribute 50
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, 3) aiding
1

All ECF citations are derived from the underlying criminal action, No. 3:10-cr-00038-01.

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and abetting the possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2, and 4) being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). See ECF Nos. 2, 148, 150. On February 22, 2011, the
petitioner was sentenced to 210 months of imprisonment (to run concurrently on all counts), 8
years of supervised release, a $3,000 fine, and a $400 special assessment. ECF No. 170. On
February 24, 2011, the petitioner appealed his case to the Fourth Circuit Court of Appeals. ECF
No. 172. On October 11, 2011, the Fourth Circuit affirmed the petitioner’s conviction, ECF Nos.
193-195, and on November 2, 2011, that court issued its formal mandate in the case. ECF No.
196.
On January 28, 2013, the petitioner filed the a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (“Habeas Petition”), ECF No. 202, and a Motion for
Extension of Time [to File a Memorandum of Law and an Affidavit in Support of the Habeas
Petition], ECF No. 203. 2 The Magistrate granted the latter motion in a February 25, 2013, Order
which also required the petitioner to specifically address in his Memorandum “the reasons why
he believes that his § 2255 petition is timely filed” and required the Government to file a
response to the Habeas Petition within thirty days after the petitioner filed his anticipated
Memorandum and Affidavit. ECF No. 206. The petitioner timely filed a Memorandum in
Support, ECF No. 207, on April 8, 2013, and an Affidavit in Support, ECF No. 208, on April 11,
2013. He addressed the timeliness of the instant Habeas Petition in both documents.
On May 1, 2013, the Government timely filed a Motion to Deny [the Petitioner’s Habeas
Petition] as Untimely or, Alternatively, for an Order Directing [the Petitioner’s] Former Counsel
to Provide Information Concerning [the Petitioner’s] Claim of Ineffective Assistance of Counsel
2

Pursuant to the “prison mailbox rule,” “a pro se litigant’s legal papers are considered filed upon ‘delivery to prison
authorities, not receipt by the clerk.’” United States v. McNeill, 523 F.App’x 979, 981 (4th Cir. 2013) (quoting
Houston v. Lack, 487 U.S. 266, 275 (1988)).

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and [Ordering] an Abeyance, ECF No. 209. On May 9, 2013, the Magistrate granted the portion
of the Government’s Motion which sought an abeyance and suspended the requirement that the
Government file a response to the petitioner’s instant Habeas Petition until after the timeliness
issue had been ruled upon. ECF No. 210. On May 29, 2013, the petitioner timely filed his Reply
to the Government’s instant Motion. ECF No. 211.
On April 8, 2014, the Magistrate submitted PF&Rs for disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). ECF No. 215. On April 21, 2014, the petitioner timely filed Objections to the
Magistrate’s PF&Rs. ECF No. 216. On August 7, 2014, having reviewed de novo those portions
of the Magistrate’s PF&R’s to which the petitioner objects, the Court found that petitioner’s
objections lacked merit. Accordingly, the Court then adopted the portion of the Magistrate’s
PF&Rs which recommended that this Court deny as untimely the petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 202, and grant the
Government’s Motion to Deny [the Petitioner’s Motion] as Untimely, ECF No. 209. ECF No.
218.
As expressed in this Court’s Memorandum Opinion and Order, ECF No. 217, the
Magistrate found and the Court agreed, that the petitioner’s Habeas Petition was untimely and
that the petitioner had failed to present extraordinary circumstances which would warrant
equitable tolling of the requirement, under 28 U.S.C. § 2255(f), that he file his Petition within the
one year limitation period after the date on which his judgment of conviction became final. See
ECF No. 217 at 3 (citing PF&Rs at 4 n.2, 6). Now before the Court is the petitioner’s Motion to
Amend or Alter Judgment brought pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure in light of alleged legal errors rendered when deciding his Habeas Petition. ECF No.
219.

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II. Applicable Law
Rule 59(e) of the Federal Rules of Civil Procedure allows for the reconsideration of a
final judgment upon the filing of a motion to alter or amend a judgment within 28 days after that
judgment is entered. The decision to grant or deny a Rule 59(e) motion is discretionary. United
States v. Torain, 77 F.Supp.2d 749, 751 (S.D.W.Va. 1999) (citing Boryan v. United States, 884
F.2d 767, 771 (4th Cir. 1989). The text of the rule does not provide a standard guiding when a
district court may grant a Rule 59(e) motion, but the Fourth Circuit has recognized the following
“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.” 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)).
With respect to motions alleging a clear error of law, something more than mere
disagreement with a court’s application of relevant legal standards is required. Compare
Hutchinson, 994 F.2d at 1082 (“While plaintiffs disagreed with how the district court applied the
Christiansburg standard, mere disagreement does not support a Rule 59(e) motion”), with
Walker v. McCaughtry, 72 F.Supp. 2d 1025 (E.D. Wis. 1999) (possible application of the wrong
legal standard in habeas proceedings amounted to clear error of law);
Reconsideration pursuant to a Rule 59(e) motion is well recognized as an extraordinary
remedy, which in the interests of finality and conserving judicial resources, should be granted
sparingly and only upon a showing of exceptional circumstances. Pacific Ins. Co. v. American
Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998); Gross v. Pfizer, Inc., 825 F.Supp.2d 654,
662 (S.D.Md. 2011); U.S. ex rel. Ge v. Takeda Pharmaceutical Co. Ltd., 737 F.3d 116, 127 (1st

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Cir. 2013); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); 11 Wright et al., Federal
Practice & Procedure § 2810.1, at 124 (3d ed. 2014). A motion to reconsider should not be
granted where the moving party simply seeks to have the Court ‘rethink what the Court ha[s]
already thought through—rightly or wrongly.’” Torain, 77 F.Supp.2d at 751 (citing Above the
Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va. 1983).
The D.C. Circuit has recently considered the application of a Rule 59(e) motion to a
habeas petition, applying the same standard to guide the decision to grant or deny such a motion
in the context of habeas proceedings as in other civil matters. Hentif v. Obama, 883 F.Supp.2d 97
(D.C. Cir. 2012). In Hentif, the petitioner argued that the district court’s decision to deny his
Rule 59(e) motion was faulty and warranted reconsideration on the basis of evidence that was
provided to the court after the merits hearing, but well before a final decision was rendered on
his habeas petition. Id. at 100. On appeal of the denied motion for reconsideration, the court
declined to treat that evidence as “newly discovered” as the petitioner would have had ample
opportunity to present that evidence prior to entry of a final judgment. Id. Without a showing of
newly discovered evidence or a manifest error of law, the court held that reconsideration was not
warranted and had been properly denied below. Id.
III. Application
The petitioner appears to base his Rule 59(e) Motion on the ground that this Court
committed an error of law when deciding his Habeas Petition. ECF No. 219. It is within the
discretion of the Court to grant a Rule 59(e) Motion “in order to correct a clear error of law or
prevent manifest injustice.” Hutchinson, 994 F.2d at 1081. However, the Court is satisfied that
there was no such clear error of law or manifest injustice in the Magistrate’s PF&Rs or in this
Court’s adoption thereof.

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The petitioner previously argued that he was entitled to equitable tolling because 1) his
attorney advised him, in writing, that he could file a petition for writ of certiorari within ninety
days from the Fourth Circuit’s mandate, which was issued on November 2, 2011, and would
have made the deadline for filing a Habeas Petition fall on January 31, 2013, and 2) part of the
petitioner’s left thumb was cut off in October 2012, so he was medicated, in pain, and confined
to an area of the prison with no access to legal materials or resources for twenty-five days within
the limitation period (from October 26, 2012, to November 19, 2012). Presumably relying on
these same arguments, the petitioner now asserts that it was a clear legal error to deny his Habeas
Petition as untimely because his good faith allegations, if true, entitle him to equitable relief. See
Laws v. Lamarque, 351 F.3d 919 (9th Cir. 2003).
As articulated in the Order at issue, a petitioner is entitled to equitable tolling only if he
has pursued his rights with reasonable diligence and extraordinary circumstance prevented
timely filing. ECF No. 217 at 5 (citing Holland v. Florida, 560 U.S. 631, 649 (2010).
Furthermore, precedent clearly provides that “a garden variety claim of excusable neglect, such
as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling.” Holland v. Florida, 560 U.S. at 650-52 (citations omitted) (internal quotation
marks omitted). While the petitioner’s counsel did misinform him of the date by which a petition
for writ of certiorari must be filed, counsel made no statement with respect to the filing
requirements for a Habeas petition. See ECF No. 216 at 13. As further explained by the Court in
its previous Order, given the Notice of Judgment filed by the Fourth Circuit on October 11,
2011, specifying the correct filing requirements for a Petition for Writ of Certiorari, had the
petitioner pursued the matter with minimal diligence he would have conducted extra research
and recovered from counsel’s unfortunate misstatement. ECF No. 217 at 7.

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Not only has the petitioner failed to exercise the reasonable diligence required under the
law to be entitled to equitable tolling, this Court further explained that the factual basis for
petitioner’s arguments similarly falls short of the legal standard of “extraordinary circumstance.”
The petitioner’s physical injury was short-lived and not so extraordinary as to have prevented
timely filing. In light of these unfortunate failures to satisfy the relevant legal standard, the Court
recognizes no clear error of law in its previous Order.
It appears to the Court that the petitioner has not demonstrated any clear error of law, but
instead relies on Rule 59(e) merely to request that the Court “‘rethink what the Court ha[s]
already thought through—rightly or wrongly,’” Torain, 77 F.Supp.2d at 751, and it would be
improper for the Court to grant the instant motion on that basis. Finding no clear error of law, nor
any suggestion of intervening controlling case law or presentation of newly discovered evidence,
the Court must deny the petitioner’s Rule 59(e) Motion, instead appropriately reserving this
extraordinary remedy for truly exceptional circumstances.
IV. Conclusion
For the reasons explained above, Petitioner’s Motion to Amend or Alter Judgment
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, ECF No. 219, is DENIED.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.

ENTER:

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September 8, 2014