U.S. v. Battle

• Decision Date: 25 June 2003
• Docket Number: Nos. CR. 1:95-CR-528-ODE, CIV.A. 1:01-cv-2620-ODE.,s. CR. 1:95-CR-528-ODE, CIV.A. 1:01-cv-2620-ODE.
• Citation: 272 F.Supp.2d 1354
• Parties: UNITED STATES of America, v. Anthony George BATTLE.
• Court: U.S. District Court — Northern District of Georgia

272 F.Supp.2d 1354

UNITED STATES of America, v. Anthony George BATTLE.

Nos. CR. 1:95-CR-528-ODE, CIV.A. 1:01-cv-2620-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

June 25, 2003.

COPYRIGHT MATERIAL OMITTED

William H. McKinnon, Assistant United States Attorney, Atlanta, GA, for United States.

Margaret O'Donnell, McNally & O'Donnell, P.S.C., Frankfort, KY, P. Bruce Kirwan, Atlanta, GA, for Anthony George Battle.

ORDER

EVANS, Chief Judge.

This federal death penalty case is before the Court on Defendant's Motion to Alter and Amend the Court's April 30, 2003 Order [# 470]. The motion is brought under Rule 59(e) of the Federal Rules of Civil Procedure.¹ The April 30 order denied Defendant's motion to set aside his conviction and death sentence brought pursuant to 28 U.S.C. § 2255. The Government has filed a response, agreeing in part and objecting in part to Defendant's motion.

It is unclear whether Defendant may file a motion under Rule 59(e) ("motion to alter or amend judgment") with respect to an order denying a motion brought under 28 U.S.C. § 2255. On the one hand, the term "order" does not typically have the same meaning as the term "judgment"; on the other hand, 28 U.S.C. § 2255 itself specifies that "an appeal may be taken to the Court of Appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." (Emphasis supplied). Also, Rule 11 of the Rules Governing § 2255 Motions Brought in the United States District Courts specifies that the time for appeal in § 2255 cases "shall be governed by Rule 4(a) of the Federal Rules of Appellate Procedure." One part of Rule 4(a) states that when a Rule 59(e) motion to alter or amend a judgment is timely filed, the time for appeal runs from the entry of the Court's order on the 59(e) motion. See Rule 4(a)(4)(A)(iv). Thus there is some textual basis for concluding that a Rule 59(e) motion may be used to seek to alter or amend an order granting or denying a § 2255 motion.

The United States Court of Appeals for the Eleventh Circuit has not directly ruled on this issue, though it did note in Jester v. United States, 714 F.2d 97, 98 (11th Cir.1983), that a motion for reconsideration of the denial of a § 2255 motion might be termed a Rule 59(e) motion if filed within ten days following the judgment. In United States v. Clark, 984 F.2d 31 (2d Cir.1993), the United States Court of Appeals for the Second Circuit, after reviewing the relevant history, and while recognizing that there is no completely satisfactory interpretation, held that a reconsideration motion filed within ten days of entry of an order granting or denying a § 2255 motion should be considered as a Rule 59(e) motion. Here, Defendant's motion was filed within ten days of date of entry of the order, when intervening weekend days are excluded in accordance with Rule 6(a), Federal Rules of Civil Procedure, and Rule 45(a), Federal Rules of Criminal Procedure. The Court will treat Defendant's motion as a Rule 59(e) motion.

Rule 59(e), Federal Rules of Civil Procedure, does not itself describe the necessary elements or standards for a Rule 59(e) motion. Rather, it simply provides:

Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.

The Court has not located an Eleventh Circuit case stating the standards for a Rule 59(e) motion seeking reconsideration of denial of a § 2255 motion. However, there are three primary grounds for reconsideration of a judgment: an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996); Collison v. International Chem. Workers Un. Local 217, 34 F.3d 233, 236 (4th Cir.1994). A motion to reconsider must demonstrate why the court should reconsider its decision and "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). A district court's decision on whether to alter or amend a judgment is reviewed under an abuse of discretion standard. See American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985)

In Chery v. Bowman, 901 F.2d 1053 (11th Cir.1990), the Court of Appeals affirmed the district court's denial of a motion to alter or amend judgment in a civil suit for damages. The motion had offered additional evidence through an affidavit appended to the motion. In finding that the district court had not abused its discretion, the Court of Appeals noted the late filing of the affidavit and its relatively unimpressive content. The court also said:

When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered or, if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. See Taylor v. Texgas Corp., 831 F.2d 255, 259 (11th Cir.1987); American Home Assurance Co., 763 F.2d at 1239.

Id. at 1057 n. 6.

In O'Neal v. Kennamer, 958 F.2d 1044 (11th Cir.1992), the Court of Appeals held that Rule 59(e) motions should not be used to raise new arguments which could have been made earlier, and also noted:

Denial of a motion to amend is "especially soundly exercised when the party has failed to articulate any reason for the failure to raise the issue at an earlier stage in the litigation."

Id. at 1047 (citing Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.1990)). In Mays v. United States Postal Service, 122 F.3d 43 (11th Cir.1997), a Title VII case, the Court of Appeals held that new evidence offered in support of a Rule 59(e) motion would not be considered absent a showing that the evidence was previously unavailable.

A district court decision within the Eleventh Circuit also discusses the standards for a Rule 59(e) motion, although not in the context of a § 2255 matter. In Medley v. Westpoint Stevens, Inc., 162 F.R.D. 697 (M.D.Ala.1995), a Title VII case, the court held that it was improper to seek to introduce new evidence on a motion to reconsider brought under Rule 59(e), absent a showing that the evidence was unavailable earlier. The court also noted that

[a] motion to reconsider is properly brought to correct a clear error in the Court's interpretation of either the facts or the law.... It should be used in order to prevent manifest injustice, however it is an extreme measure, and substantial discretion rests with the Court in granting such a motion.

Id. at 698. An error is not "clear and obvious" if the legal issues are "at least arguable." American Home Assurance Co., 763 F.2d at 1239 (quoting Alvestad v. Monsanto Co., 671 F.2d 908, 913 (5th Cir. 1982)).

It seems reasonable that the standards applicable to a Rule 59(e) motion in a § 2255 matter should be the same as in typical civil cases. While issues of personal liberty are drawn into question in a § 2255 matter, considerations of finality and avoiding piecemeal litigation are nonetheless important. In the absence of binding authority to the contrary, the Court will apply the standards announced in the Eleventh Circuit civil cases discussed above.

Both Defendant and the Government agree that the April 30 order requires modification in one respect. Specifically, the Order's concluding paragraph stated:

Pursuant to 18 U.S.C. § 3596, the Attorney General is directed to release the Defendant no sooner than 45 days and no later than 60 days to the custody of the United States Marshal for execution. The United States Marshal shall supervise implementation of the sentence in the manner prescribed by law. The execution is to occur no later than sixty (60) days from the date of entry of this order. A timely appeal from this Order shall stay the release and the execution.

Both Defendant and the Government point out that under Rule 4(a)(1)(B), Federal Rules of Appellate Procedure, each side has 60 days rather than the normal 30 days within which to file a notice of appeal. The Court's April 30 order leaves open the possibility that Defendant could file a notice of appeal as late as the last allowable date for the execution. Clearly this schedule is inappropriate. To correct a plain and obvious error, the Court will modify the schedule previously set.

Defendant also argues that the language in the Court's order directing the Attorney General to release the Defendant to the custody of the United States Marshal for execution is inappropriate because federal regulations set procedures for execution not specified in the Court's order or in the relevant statute. See Implementation of Death Sentences in Federal Cases, 28 C.F.R. §§ 26.2, 26.3, 26.4 (2003). Upon review of the relevant regulations, the Court finds no inconsistency between them and the provision of the April 30 order.

Defendant further seeks alteration and amendment of some of the factual and legal findings of the April 30 order. Defendant tenders three declarations including attachments, and miscellaneous papers in support of his request for alteration and amendment. The government opposes this part of Defendant's motion.

After reviewing each of the declarations offered by Defendant, the Court declines to admit any of them, their attachments, or the miscellaneous papers into evidence. All of this evidence was available to Defendant during the habeas proceedings. With respect to two of the declarations and their attachments — the supplemental declarations of Walter W. Buer, Jr. and Karen Froming — Defendant has not even attempted to show that habeas counsel made a diligent, timely effort to discover the evidence represented by the declarations and other materials or that the evidence was unavailable for any reason. With respect to the supplemental declaration of John Martin, Defendant provides an...