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Jenkins v. Dunn

United States District Court, N.D. Alabama, Middle Division

May 10, 2017

JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.


          VIRGINIA EMERSON HOPKINS, United States District Judge

         This death penalty habeas action brought pursuant to 28 U.S.C.A. § 2254 comes before the Court on petitioner's Motion To Alter or Amend Judgment and To Reconsider Denial of a Certificate of Appealability (doc. 59). The respondent has opposed (doc. 63) and petitioner has replied (doc. 66). Additionally, on April 15, 2017, the petitioner filed a Notice of Supplemental Authority (doc. 70). Accordingly, the matter is ripe for determination.

         The Court's 347-page Memorandum Opinion (doc. 57) entered on August 31, 2016, comprehensively sets out the undersigned's reasoning and conclusions on each of petitioner's myriad habeas claims. Petitioner has not satisfied the Rule 59(e) standard for reconsideration, as his arguments either rehash what he has already said or otherwise do not meet the “manifest error” standard for relief. Additionally, any “new” arguments are jurisdictionally barred. Accordingly, the Motion is due to be, and hereby is, DENIED.

          I. BACKGROUND

          The petitioner, Mark Allen Jenkins (“Mr. Jenkins”), was convicted and sentenced to death in the Circuit Court of St. Clair County, Alabama, for the 1989 murder of Tammy Ruth Hogeland during the course of a robbery and kidnaping. The Alabama state courts devoted significant efforts to hearing and adjudicating Mr. Jenkins's direct appeal. The Supreme Court of the United States has denied certiorari three times in this action.

         On May 16, 2008, Mr. Jenkins timely filed in this District Court a 113-page § 2254 Petition for Writ of Habeas Corpus by Person in State Custody under Death Sentence. On August 11, 2008, Mr. Jenkins filed an amended § 2254 Petition in this District Court. The respondent filed an answer to the amended petition. On November 12, 2008, this action was stayed to allow Mr. Jenkins to pursue a second state Rule 32 petition, which he filed in state court on October 1, 2008. The Alabama State Court heard and adjudicated Mr. Jenkins's second Rule 32 petition. On June 20, 2013, Mr. Jenkins filed an amended petition in this District Court, raising his newly-exhausted Rule 32 claim. The respondent filed an answer to the amendment on September 3, 2013. Mr. Jenkins filed a reply brief on November 14, 2013.

         On November 14, 2013, Mr. Jenkins filed a Motion for an Evidentiary Hearing, in which he raised an Atkins claim. The respondent opposed this motion. After Mr. Jenkins filed his reply brief in that motion, on March 31, 2015, this Court denied Mr. Jenkins's motion.

         On August 24, 2015, this Court ordered the respondent to supplement the record, which the respondent did two days later. On August 31, 2016, after considering all the pleadings and the voluminous record, this Court issued its Memorandum Opinion and its Order denying the petition and denying a certificate of appealability as to all of Mr. Jenkins's claims.

         On September 28, 2016 (the 28th calendar day after entry of the August 31 Memorandum Opinion and Order), Mr. Jenkins filed his 87-page Motion To Alter or Amend Judgment and To Reconsider Denial of a Certificate of Appealability under Rule 59(e), Fed.R.Civ.P. In that Motion, petitioner asks that this Court reexamine all or virtually all of the issues denied by this Court.

         Specifically, the Motion asserts that this Court erred because it “largely adopt[ed] Alabama courts' unreasonable determinations” (doc. 59 at 5) in denying Mr. Jenkins's claim of (1) ineffective assistance of counsel (with 7 sub-claims under this claim) (doc. 59 at 5-70); (2) juror misconduct (with 3 sub-claims) (id. at 70-75); (3) intellectual disability (“Atkins”) (with 24 “aspects” listed without any analysis) (id. at 75-82); and (4) ineffective assistance claims based on Batson (with 12 “aspects” listed without any analysis) (id. at 82-87).[1]


         A. Rule 59(e) Standard Generally

         1.The standard in this Circuit will be applied by this Court.

         “The decision to alter or amend judgment is committed to the sound discretion of the district judge and will not be overturned on appeal absent an abuse of discretion.” Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985) (citing Futures Trading Comm'n v. Am. Commodities Group, 753 F.2d 862, 866 (11th Cir. 1984)). “While, as a rule, parties are not entitled to ‘two bites at the apple', there are occasions in which reconsideration should be entertained.” Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990) (citing Am. Home, 763 F.2d at 1239).

         As the Eleventh Circuit has summarized the limited scope of relief that is available to a litigant under Rule 59(e):

“The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.” In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007); see also Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (“Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59.”); Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (“The purpose of a Rule 59(e) motion is not to raise an argument that was previously available, but not pressed.”). “The extremely limited nature of the Rule 59(e) remedy cannot be overstated. To prevail on a motion to reconsider, ‘[t]he losing party must do more than show that a grant of the motion might have been warranted; he must demonstrate a justification for relief so compelling that the court was required to grant the motion.' Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir.2012) (citations and internal marks omitted).” Lee v. Thomas, No. CIV.A. 10-0587-WS-M, 2012 WL 3137901, at *2 n.1 (S.D. Ala. Aug. 1, 2012)(Steele, J.).

         2. Mr. Jenkins's proffered standard is erroneous.

         Counsel for Mr. Jenkins, in his reply brief, states “the Commissioner correctly asserts this Court may grant a motion to correct a manifest error o[f] law or fact.” (Doc. 66 at 1-2, citing doc. 63 at 5). He next states that “[b]ecause each issue raised in Mr. Jenkins's Motion identifies, with specificity, such legal or factual errors, the Court should grant this motion to reconsider and grant relief for the reasons set forth in that motion.” (Id. at 2). He then argues that, “[c]ontrary to the Commissioner's related assertion - i.e., that manifest errors of law or fact constitute ‘the only grounds for granting [a Rule 59(e)] motion, ' - however, a motion to reconsider is also the appropriate means to address intervening changes in law, or where petitioner was denied notice and a fair opportunity to present his position.” (Id.) (emphasis by italics in original; citations omitted). He concludes his statement of the appropriate “Standards of Review” (id. at 1) by asserting that, “[b]ecause Mr. Jenkins's Rule 59(e) motion addresses manifest errors, intervening changes in the law, and/or findings and conclusions for which he was denied fair notice and an opportunity to be heard, this Court should reconsider its decision and grant relief.” (Id. . at 2-3).

         Mr. Jenkins is wrong. The authority he cites does not hold as he states it does, is not binding in this Circuit, or both.

         In support of his “intervening changes in law” standard, he cites three cases: Oliver v. Orange Co., Fla., 456 F. App'x 815, 818 (11th Cir. 2012); Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011); Summit Med. Ctr. Of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003). Oliver is unpublished, and therefore not binding. Additionally, it is not on point. In Oliver, the appellant asserted that the district court had violated the law of the case doctrine.[2] Specifically, the Oliver panel said: “there are exceptions to the law of the case doctrine, namely, where the defendant can show either (1) new evidence; (2) an intervening change in the law that dictates a different result; or (3) that the prior decision was clearly erroneous and would result in manifest injustice.” Oliver, 456 F. App'x at 818.

         Burtch[3] v. Milberg Factors, Inc., 662 F.3d 212 (3d Cir. 2011) is a decision of the Third Circuit Court of Appeals. It does contain language consistent with Mr. Jenkins's “intervening change in law” standard for motions brought under Rule 59(e).[4] However, what Burtch actually concerned was an appeal by a Chapter 7 trustee of a district court's order granting the defendants' motion to dismiss as well as the district court's order denying leave to amend the complaint. Id. At 216. Specifically, after the district court dismissed the complaint under 12(b)(6) (applying “Twiqbal”), the trustee “brought a Motion To Alter or Amend Judgment under Federal Rules of Procedure 59(e) and 15(a).” Id. at 219. The district court “denied the Motion, declining to re-open the judgment and denying leave to amend. The [d]istrict [c]ourt concluded that Rule 59 governs post-judgment requests for leave to amend and Burtch failed to allege any of the requirements of Rule 59(e).” Id. at 220. The Third Circuit affirmed on the basis that the proposed amendment was futile. Id. at 231 (“The Proposed Amended Complaint is futile and the Rule 59(e) and Rule 15(a) motions were properly denied.”).

         Summit Med. Ctr. Of Ala., Inc. v. Riley, 284 F.Supp.2d 1350 (M.D. Ala. 2003) is the final case cited by Mr. Jenkins for his “intervening changes in law” standard. Of course, district court cases are not binding authority. Language consistent with Mr. Jenkins's standard appears in this case. Specifically, and with context, that court stated:

The Defendants' Motion to Alter or Amend Order on Summary Judgment is directed toward the court's conclusion that the Act's compelled payment provision violates the First Amendment. In support of their motion, the Defendants assert two arguments. First, the Defendants contend that the court failed to view the Act's compelled payment provision within the context of the State's broader regulatory scheme for abortion. The Defendants conclude that by taking a narrow view of the Act's context, the court incorrectly applied United States v. United Foods, Inc., 533 U.S. 405, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001). Second, the Defendants argue that the court failed to consider whether the State's informational materials are immune from First Amendment scrutiny under the “government speech” doctrine. Neither of these two arguments is properly asserted in a motion for reconsideration, except possibly to the extent that the first argument is simply that the court “got it wrong.” See Mays v. United States Postal Service, 122 F.3d 43, 46 (11th Cir.1997) (“This circuit has held that a motion to reconsider should not be used by the parties to set forth new theories of law.”). A motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice. See Groover, 90 F.Supp.2d at 1256. None of these criteria are present in this case; therefore, the court concludes that the Defendants' motion is due to be DENIED.

Id. at 1354-55.

         To support his argument that the Rule 59(e) standard is met “where petitioner was denied notice and a fair opportunity to present his position, ” (doc. 66 at 2), Mr. Jenkins relies on three inapposite and non-supportive cases. The first is “Day v. McDonough, 547 U.S. 198, 210 (2006) (“[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.”)” (doc. 66 at 2). In Day, the Supreme Court “h[e]ld that district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Id. at 209. They then went on to state, “[o]f course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Id. at 210. That is, in Day, the district court sua sponte determined facts - specifically, that the date the parties relied on was not accurate and what the correct date was. The facts had legal significance, but nonetheless they were facts. Mr. Jenkins seeks to stretch the Court's statement in Day to preclude courts from relying on legal authority that is issued after the parties' last briefing without first giving the parties notice of the fact that the court is going to do so and an opportunity for the parties to be heard about that legal authority. By any stretch of the imagination, Day does not support the proposition for which Mr. Jenkins offers it.

         The second case relied on by Mr. Jenkins for his deprivation of notice and fair opportunity standard is “Brumfield v. Cain, 135 S.Ct. 2269, 2281-82 (2015)(holding it improper to defer to state fact findings or to ‘hypothetical reasons state court might have given for denying federal claim where there is ‘no opinion explaining the reasons relief has been denied.'”)” (doc. ...

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