United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
This
matter is before the Court on Petitioner's motion for
reconsideration (Dkt. No. 18). For the reasons set forth
below, the Court denies the motion.
I.
Background
On
September 3, 1999, Petitioner was convicted of murder and
given a sentence of life incarceration. The South Carolina
Court of Appeals affirmed the conviction, and the South
Carolina Supreme Court denied certiorari. Petitioner's
PCR was denied. On January 16, 2009, Petitioner filed a
Petition under 28 U.S.C. § 2254, which was dismissed
with prejudice as untimely. The Fourth Circuit dismissed the
appeal. See Johnson v. State of South Carolina et
al, Civil Action No. 4:09-cv-156-GRA. In this action,
Petitioner filed a Petition under 28 U.S.C. § 2254. On
June 10, 2019, the Court adopted the Report and
Recommendation (R & R) of the Magistrate Judge and
Dismissed Plaintiffs petition as an unauthorized successive
petition. (Dkt. No. 15.) Both the R & R and the
Court's Order were mailed to Petitioner at the same
address, as listed on his Petition, and neither has been
returned as undeliverable. (Dkt. Nos. 12, 17.)
Petitioner
now seeks reconsideration of the Court's order, arguing
that he never received a copy of the Report and
Recommendation that the Court ultimately adopted. (Dkt. No.
18.)
II.
Legal Standard
Rule
59(e) of the Federal Rules of Civil Procedure governs motions
to alter or amend a judgment; however, the rule does not
provide a legal standard for such motions. The Fourth Circuit
has articulated "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." Pac. Ins. Co. v. Am.
Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) citing EEOC v. Lockheed Martin Corp., 116 F.3d
110, 112 (4th Cir. 1997); Hutchinson v. Staton, 994
F.2d 1076, 1081 (4th Cir. 1993). "Rule 59(e) motions may
not be used, however, to raise arguments which could have
been raised prior to the issuance of the judgment, nor may
they be used to argue a case under a novel legal theory that
the party had the ability to address in the first
instance." Id. at 403 (internal citations
omitted). Rule 59(e) provides an "extraordinary remedy
that should be used sparingly." Id. (internal
citation omitted). The decision to alter or amend a judgment
is reviewed for an abuse of discretion. Id. at 402.
III.
Discussion
While
Plaintiff alleges that he never received the underlying
Report and Recommendation, Plaintiff fails to identify any
intervening change of law or new evidence indicating that his
Petition is not an unauthorized successive petition. Further,
Plaintiff has advanced no argument nor demonstrated that
there was a clear error of law and/or the decision
constituted a manifest injustice regarding whether his
Petition is an unauthorized successive petition.
Even
crediting his assertion that he never received the Report and
Recommendation, the Court fully reviewed the record, reviewed
the Magistrate Judge's findings and laid out in full the
Court's reasoning and determination (Dkt. No. 15), and
Petitioner has not met any of the standards permitting
reconsideration of the Order. Further, courts are required
to, and this Court did, conduct a preliminary review to
determine whether a petitioner is plainly not entitled to
relief in district court under Rule 4 of the Rules Governing
§ 2254 Cases. Petitioner has not submitted any evidence
that he obtained authorization from the Fourth Circuit to
file a successive petition, and therefore the Petitioner is
plainly not entitled to relief in district
court.[1] Finally, the Court notes that its Order
dismissed the petition without prejudice. Therefore,
Petitioner may re-file his case to the extent he is able to
meet the procedural prerequisites.
IV.
Conclusion
For the
reasons above, Defendant's motion for reconsideration
(Dkt. No. 18) is DENIED.
AND
IT ...