Opinion
CASE NO. 8:14-cv-2278-T-23AEP
08-17-2015
LLOYD KING, Applicant, v. SECRETARY, Department of Corrections, Respondent.
ORDER
King's application for the writ of habeas corpus under 28 U.S.C. § 2254 was dismissed because the application was untimely and because King showed no entitlement to a delayed start of the limitation based on newly discovered evidence. (Doc. 20) King "opposes" the order, which paper is construed as a motion to alter or amend a judgment under Rule 59(e), Federal Rules of Civil Procedure. (Doc. 21)
Rule 59(e) authorizes a motion to alter or amend a judgment after the judgment's entry. "The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). The decision to alter or amend a judgment under Rule 59(e) "is committed to the sound discretion of the district judge." Am. Home Assur. Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir. 1985). A party seeking reconsideration must "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 294 (M.D. Fla. 1993).
The decision to alter or amend a judgment is an "extraordinary remedy." Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). A party cannot use "a Rule 59(e) motion to re-litigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Arthur v. King, 500 F.3d at 1343 (quoting Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). King's Rule 59(e) motion reiterates the basis for his asserting entitlement to a delayed federal limitation under Section 2244(d)(1)(D), which argument is rejected in the earlier order. King neither asserts an intervening change in controlling law nor demonstrates a manifest error of law or fact resulting from the denial of his Section 2254 application. See Arthur v. King, 500 F.3d at 1343.
King also asserts entitlement to equitable tolling of the limitation. The federal limitation is not jurisdictional, and, as a consequence, the one-year limitation established in Section 2244(d) "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner must meet both requirements, and he controls the first requirement — due diligence — but not the second requirement — extraordinary circumstances. The failure to meet either requirement precludes equitable tolling. Regarding the first requirement, a "petitioner's lack of diligence precludes equity's operation," 544 U.S. at 419, but "[t]he diligence required for equitable tolling purposes is 'reasonable diligence,' not 'maximum feasible diligence.'" Holland, 560 U.S. at 653 (internal quotations and citations omitted). To satisfy the second requirement, the petitioner must show extraordinary circumstances both beyond the petitioner's control and unavoidable even with diligence. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
As discussed in the earlier order, King's claim — that newly discovered evidence proves that a "deal" was in place when his co-defendant testified against him at trial — was raised only during his sentencing and in his motion for rehearing on direct appeal, not in one of his several post-conviction proceedings. As a consequence, no "extraordinary circumstance" precluded King from asserting his claim in a timely Section 2254 application.
Accordingly, King's motion to alter or amend judgment (Doc. 21) is DENIED.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
King is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, King must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the application is clearly time-barred and because King can meet the requirements neither for a delayed start of the limitation nor for equitable tolling, King cannot meet Slack's prejudice requirement. 529 U.S. at 484. Finally, because King is not entitled to a COA, he is not entitled to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. King must pay the full $505 appellate filing fee unless the circuit court allows King to appeal in forma pauperis.
ORDERED in Tampa, Florida, on August 17, 2015.
/s/_________
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE