United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's Federal Rule
of Civil Procedure 59(e) motion to alter or amend the
Court's January 30, 2017 Judgment denying his motion
pursuant to 28 U.S.C. § 2255. (Doc. 114). Petitioner has
also filed a Motion to Amend or Make Additional Factual and
Legal Findings under Rule 52(b) (Doc. 115), a Motion to Take
Judicial Notice Under Fed.R.Evid. 201 (Doc. 116), a Motion to
Supplement and Add Evidence to Motion to Alter/Amend Judgment
Pursuant to Federal Rule of Civil Procedure 59(e) and Request
an Evidentiary Hearing (Doc. 122), Petitioner's Reply to
Respondent's Response (Doc. 124), three motions for the
Court to order defense counsel to turn over a copy of
Defendant's legal file (Docs. 125, 126, and 131), and a
Motion for Release (Doc. 127). For the reasons discussed
herein, these motions are all DENIED, with
the exception of Petitioner's Rule 52(b) motion, which is
GRANTED IN PART as specified in footnote
Petitioner's Rule 59(e) and 52(b) Motions (Doc.
same time he filed his Rule 59(e) motion, Petitioner also
filed a notice of appeal, which generally divests a district
court of jurisdiction to take any action in a case except in
aid of the appeal. United States v. Diveroli, 729
F.3d 1339, 1341 (11th Cir. 2013). However, the filing of a
timely Rule 59(e) motion renders a notice of appeal
ineffective until the district court enters an order
dismissing the motion. See Fed. R. App. P.
4(a)(4)(B)(i); Stansell v. Revolutionary Armed
Forces of Columbia, 771 F.3d 713, 745-46 (11th Cir.
2014). Thus, a district court retains jurisdiction to
consider a timely Rule 59(e) motion despite a
Petitioner's filing of a notice of appeal.
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,
§ 2255 context, the Court must be wary of an
unauthorized attempt at a second or successive § 2255
motion disguised as a Rule 59(e) motion. In Williams v.
Chatman, the Eleventh Circuit addressed the district
court's jurisdiction to consider a Rule 60(b) motion in
the habeas context. 510 F.3d 1290, 1293-94 (11th Cir. 2007).
As explained in Williams:
Federal courts are “obligated to inquire into
subject-matter jurisdiction sua sponte whenever it
may be lacking.” Cadet v. Bulger, 377 F.3d
1173, 1179 (11th Cir.2004). As a threshold matter, therefore,
we must initially determine both whether the district court
had subject matter jurisdiction to consider Williams'
Rule 60(b) motion and whether this Court has jurisdiction to
review the district court's denial of his motion. We
review de novo questions concerning jurisdiction.
Brooks v. Ashcroft, 283 F.3d 1268, 1275 (11th
Federal Rule of Civil Procedure 60 provides a basis, but only
a limited basis, for a party to seek relief from a final
judgment in a habeas case. See Fed.R.Civ.P. 60. The
Supreme Court explained in Gonzalez v. Crosby, 545
U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), that the
Federal Rules of Civil Procedure apply to habeas proceedings
to the extent that they are “not inconsistent with
applicable federal statutory provisions, ” id.
at 529, 125 S.Ct. at 2646 (quoting 28 U.S.C. § 2254 Rule
11) (internal marks omitted), and the Antiterrorism and
Effective Death Penalty Act does not explicitly limit the
operation of Rule 60(b). Id. The Act does,
nonetheless, foreclose application of that rule where it
would be inconsistent with the restrictions imposed on
successive petitions by the AEDPA. Id. at 529-30,
125 S.Ct. at 2646.
The Supreme Court held in Gonzalez that a Rule 60(b)
motion is to be treated as a successive habeas petition if
it: (1) “seeks to add a new ground of relief;” or
(2) “attacks the federal court's previous
resolution of a claim on the merits.”
Id. at 532, 125 S.Ct. at 2648. Where, however, a
Rule 60(b) motion “attacks, not the substance of the
federal court's resolution of a claim on the merits, but
some defect in the integrity of the federal habeas
proceedings, ” the motion is not a successive habeas
petition. Id. A “claim, ” as described
by the Court in Gonzalez, is “an asserted
federal basis for relief from a state court's judgment of
conviction.” Id. at 530, 125 S.Ct. at 2647.
The Supreme Court further explained in Gonzalez
The term “on the merits” has multiple usages. We
refer here to a determination that there exist or do not
exist grounds entitling a petitioner to habeas corpus relief
under 28 U.S.C. § 2254(a) and (b). When a movant asserts
one of those grounds (or asserts that a previous ruling
regarding one of those grounds was in error) he is making a
habeas corpus claim. He is not doing so when he merely
asserts that a previous ruling which precluded a merits
determination was in error-for example, a denial for such
reasons as failure to exhaust, procedural default, or
Id. at 532 n. 4, 125 S.Ct. at 2648 n. 4 (citation
Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th
Cir. 2007). Though Williams specifically addresses
Rule 60(b) motions, the Southern District of Alabama has held
that the “jurisdictional prohibition on Rule 60(b)
motions in the habeas context applies with equal force to
Rule 59(e) motions.” Aird v. United States,
339 F.Supp.2d 1305, 1311 (S.D.Ala. 2004) (Steele, J.).
consideration, the Court has determined that it lacks
jurisdiction to consider Petitioner's Rule 59(e) motion
with the exception of: 1) Petitioner's procedural bar
claims and 2) Petitioner's Clisby error claims.
This is because the procedural bar ruling was not a
determination on the merits, as described in Gonzalez v.
Crosby, 545 U.S. 524, 532 n.4 (2005), and because the
alleged Clisby errors, if committed, would be a
defect in the integrity of the federal habeas proceedings.
Williams, 510 F.3d at 1293-94. See also Madison
v. Allen, 2011 WL 1545103, at *1 (S.D. Ala. Apr. 25,
2011)(discussing Court's lack of jurisdiction over some
portions of Rule 59(e) motion seeking amendment or alteration
of an judgment on a § 2254 petition). The remainder of
Petitioner's claims are simply an attempt at an
unauthorized second or successive § 2255 petition as
they attack the Court's resolution of the petition on the
Court has compared Petitioner's allegations (Doc. 114)
with the Court's Order (Doc. 112) and makes the following
additional findings pursuant to Rule 52(b). The Court's
Order denying Petitioner's § 2255 motion held that
two of Petitioner's § 2255 claims were procedurally
barred. (Doc. 112 at 5-8). In the “Procedural
Bar” section of his Rule 59(e) motion, Petitioner
challenges 1) the Eleventh Circuit's lack of
consideration by certain statements, and 2) the alleged
failure of this Court to address his claim that counsel was
ineffective for failing to file a motion to suppress. (Doc.
114 at 2-3). This Court does not have the authority to review
the Eleventh Circuit's determinations. Thus, it declines
to alter or amend its judgment as to this issue. As to
Petitioner's argument that the Court mischaracterized his
claim, as he recognizes, the Court specifically determined
that any effort at a motion to suppress would have been
futile. He disagrees that the filing of the motion would have
been futile. His disagreement with the Court's
determination is not grounds for alternation or amendment of
the judgment, thus the Court declines to do so on this issue.
on page 28 of Doc. 114, in the section labeled “Failure
to Resolve All of Petitioner's Claims, ” Petitioner
argues that the Court made a number of Clisby
errors. Clisby v. Jones, 960 F.2d 925 (11th Cir.
1992). Recently, in Peterson v. Secretary of the
Department of Corrections, the Eleventh Circuit
summarized its holding in Clisby v. Jones as
In Clisby, the district court dismissed thirteen of
the petitioner's claims, granted habeas relief on one
claim, and reserved judgment on the remaining five claims.
Id. at 935. In response, we expressed concern over
the “growing number of cases in which [we were] forced
to remand for consideration of issues the district court
chose not to resolve.” Id. at 935-36. We
acknowledged the disruptive effect that such “piecemeal
litigation” had on a state's criminal justice
system. Id. at 935. Accordingly, in an effort to
streamline habeas procedure, we exercised our supervisory
authority and instructed district courts to resolve all
claims for relief raised in a petition for writ of habeas
corpus pursuant to § 2254, “regardless of whether
habeas relief is granted or denied.” Id. at
936. We have defined a “claim for relief” as
“any allegation of a constitutional violation.”
2017 WL 191919, at *1 (11th Cir. Jan. 18, 2017). The Court
has reviewed Petitioner's Clisby claims, as well
as its Order denying Petitioner's § 2255 petition.
Petitioner contends that the Court failed to address the
1) that trial counsel was ineffective for failing to file a
motion to suppress (Doc. 114 at 29)
2) that trial counsel was ineffective for not objecting to
the exhibits or their completeness or ...