United States District Court, D. South Carolina, Florence Division
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S
RULE 59(E) MOTION TO ALTER OR AMEND AND DENYING
PETITIONER'S REQUEST FOR A CERTIFICATE OF
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
a capital habeas corpus action brought under 28 U.S.C. §
2254 (section 2254). Pending before the Court is Petitioner
Richard Bernard Moore's (Petitioner) motion to alter or
amend the Court's Order, ECF No. 149, adopting the Report
and Recommendation (Report) of the United States Magistrate
Judge. ECF No. 152. Also included in Petitioner's motion
is a request for a certificate of appealability as to Grounds
One, Three, Four, Five, and Eight of his petition under
section 2254 for writ of habeas corpus (petition).
Id. Grounds Two, Six, and Seven of the petition were
not at issue in the Court's Order adopting the Report.
ECF No. 149 at 14. Having carefully considered the motion,
the request, the response, the record, and the applicable
law, it is the judgment of the Court both Petitioner's
motion and his request for a certificate of appealability
will be denied.
FACTUAL AND PROCEDURAL HISTORY
States Magistrate Judge Thomas E. Rogers, III, issued a
Report suggesting Respondents' motion to strike be
granted in part and denied in part, Respondents' motion
for summary judgment be granted, and Petitioner's motion
for hearing and motion to stay be denied. ECF No. 136.
Petitioner timely filed objections, ECF No. 140, and
Respondents replied, ECF No. 143. Respondents filed
additional briefing regarding Ground Four of Petitioner's
petition. ECF No. 146. Petitioner declined to file an
additional reply. On March 21, 2018, this Court entered an
Order overruling Petitioner's objections, adopting the
Report, granting in part and denying in part Respondents'
motion to strike, granting Respondents' motion for
summary judgment, denying Petitioner's petition, and
denying Petitioner's motion for a hearing and motion to
stay. ECF No. 149.
timely filed his motion under Rule 59(e) to alter or amend
the Court's Order adopting the Report and his request for
a certificate of appealability, ECF No. 152, and Respondents
filed a response, ECF No. 153. The Court is now prepared to
discuss the merits of the motion and the request.
STANDARDS OF REVIEW
are only three limited bases for a district court to grant a
Rule 59(e) motion: “(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). A Rule 59(e)
motion “may not be used to relitigate old matters, or
to raise arguments or present evidence that could have been
raised prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)
(internal quotation marks omitted). Further, “mere
disagreement [with a district court's ruling] does not
support a Rule 59(e) motion.” Hutchinson, 994
F.2d at 1082 (citing Atkins v. Marathon LeTourneau
Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)). “In
general[, ] reconsideration of a judgment after its entry is
an extraordinary remedy which should be used
sparingly.:” Pac. Ins. Co. v. Am. Nat'l Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir.1998) (internal
quotation marks omitted).
Rule 11(a) of the Rules Governing Section 2254 and 2255
Cases, “[t]he district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” For a court to issue a
certificate of appealability, “the applicant [must]
ma[ke] a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
When a district court has decided the constitutional claims
on the merits, a certificate of appealability should issue
where “petitioner  demonstrate[s] that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
CONTENTIONS OF THE PARTIES
Petitioner's motion, he asks the Court to reconsider its
Order adopting the Report. Specifically, Petitioner advances
the Court erred in applying the law regarding when a federal
habeas claim is fundamentally altered by new evidence from
the claim that was before the state court such that the new
evidence should be allowed in support of the federal habeas
claim. On that basis, Petitioner avers the Court should amend
its Order, find Grounds One and Five of his petition were
fundamentally altered by new evidence presented to this
Court, and grant his petition on Grounds One and Five. In the
alternative, Petitioner argues the Court should grant him a
certificate of appealability on Grounds One, Three, Four,
Five, and Eight of his petition.
argue the Court correctly applied the standard regarding
whether a claim has been fundamentally altered by new
evidence. Accordingly, Respondents aver the Court should deny
Petitioner's motion to alter or amend. Respondents fail
to address Petitioner's request for a certificate of
DISCUSSION AND ANALYSIS
Motion to ...