United States District Court, D. South Carolina, Anderson/Greenwood Division
PATRICK MICHAEL DUFFY, UNITED STATES DISTRICT JUDGE.
matter is before the Court on two motions filed by Petitioner
Roger Raynard Parker: (1) a motion to alter or amend a
judgment the Court previously entered in this case (ECF No.
38); and (2) a motion to strike a reply filed by Respondent
Larry Cartledge (ECF No. 36). For the following reasons, the
motion to alter or amend is denied, and the motion to strike
13, 2017, this Court entered an order dismissing Parker's
application for relief under 28 U.S.C. § 2254. Judgment
was entered the same day.
Court's July 13 order adopted a report and recommendation
(“R & R”) that United States Magistrate Judge
Jacquelyn D. Austin filed on June 22, 2017. Parker's
deadline to object to the R & R was July 10. In its order
adopting the R & R, the Court noted that Parker had not
filed any objections.
following day, the Court received a set of objections from
Parker. Cartledge replied to the objections on July 28,
arguing they were untimely and, in any event, lacked merit.
asks the Court to strike Cartledge's reply. In a separate
motion, Parker asserts that he timely filed his objections
and that this Court should consider them on the merits.
motion to alter or amend the judgment is untimely. Parker
moves for relief under Federal Rule of Civil Procedure 59(e).
Such motions must be filed “no later than 28 days after
the entry of the judgment.” Fed.R.Civ.P. 59(e).
Consequently, any motion to alter or amend this Court's
July 13 judgment was due by August 10. Parker, however, did
not file his motion until August 15.
an abundance of caution, the Court has also construed
Parker's motion as arising under Federal Rule of Civil
Procedure 60. The Court sees no basis for granting relief
under that rule. Parker's objections were untimely,
they largely rehashed earlier arguments, and Parker's
lone specific objection was improperly asserted for the first
time after the R & R was issued. See Addison v. CMH
Homes, Inc., 47 F.Supp.3d 404, 412 (D.S.C. 2014)
(stating the Court has no obligation to consider new
arguments a party raises for the first time in his objections
to an R & R); Anderson v. Dobson, 627 F.Supp.2d
619, 623 (W.D. N.C. 2007) (“An ‘objection'
that does nothing more than state a disagreement with a
magistrate's suggested resolution, or simply summarizes
what has been presented before, is not an
‘objection' as that term is used in this
context.” (citation and quotation marks omitted)).
Consequently, the Court's July 13 judgment was not the
product of a mistake, see Fed. R. Civ. P. 60(a), and
Parker lacks a meritorious position on the timeliness and
substance of his objections, see Wells Fargo Bank, N.A.
v. AMH Roman Two NC, LLC, 859 F.3d 295, 299 (4th Cir.
2017) (stating a party cannot obtain relief under Rule 60(b)
unless he shows he has, inter alia, “a
meritorious defense, ” and then satisfies one of the
foregoing reasons, Parker's motion to alter or amend is
DENIED. Because Parker has not shown any
basis for revisiting the Court's prior decision, his
motion to strike is MOOT.
Parker asks that his motion to alter or amend be construed
alternatively, as a notice of appeal of the July 13 order.
The Court does so, and it directs the Clerk's office to
process the motion as a notice of appeal filed under Federal
Rule of Appellate Procedure 3(a).