United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, United States District Judge
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.
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.
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.
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.
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.
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.
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.
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).
Rule 59(e) Standard Generally
standard in this Circuit will be applied by this
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
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,
Mr. Jenkins's proffered standard is erroneous.
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).
Jenkins is wrong. The authority he cites does not hold as he
states it does, is not binding in this Circuit, or both.
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. 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 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). 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.”).
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
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
Id. at 1354-55.
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.
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. ...