Youngmark v. Boughton
| Decision Date | 01 July 2020 |
| Docket Number | Case No. 18-cv-911-pp |
| Parties | SCOTT A. YOUNGMARK, Petitioner, v. GARY BOUGHTON, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION (DKT. NO. 19), GRANTING MOTION TO APPEAL WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 21), DENYING AS MOOT MOTION TO STAY (DKT. NO. 25) AND GRANTING MOTION TO MOVE FORWARD WITH RECONSIDERATION MOTION (DKT. NO. 28)
On February 24, 2020, the court issued an order adopting Magistrate Judge Jones's recommendation to dismiss the petition as time-barred under 28 U.S.C. §2244(d). Dkt. No. 17. It entered judgment the same day. Id. A week later—March 3, 2020—the court received the petitioner's motion for reconsideration, a brief, and seven pages of supporting materials. Dkt. Nos. 19, 19-1, 19-2. Six days later, the petitioner filed a notice of appeal, dkt. no. 20, and a motion for leave to appeal without prepaying the $505 appellate filing fee, dkt. no. 21. On March 23, 2020, the petitioner filed a motion to stay proceedings in his appellate case until the court decided the petitioner's motion for reconsideration. Dkt. No. 25. On June 1, 2020, the court received the petitioner's motion to move forward with the reconsideration motion, indicating that he'd received several orders from the Seventh Circuit, asking the respondent for the status of the motion to reconsider. Dkt. No. 28. The respondent also has written the court, indicating that the Seventh Circuit has asked him to enquire when this court plans to rule. Dkt. No. 30.
The petitioner filed a document captioned as a "Motion for Reconsideration Service for Petition for Review Supreme Court of Wisconsin." Dkt. No. 19-2. While captioned as a motion, the body of the document is a letter addressed to the clerk. Id. at 1. The letter states that the court "mistakenly overlooked the one year limit" of his filing his petition for review with both the Wisconsin Supreme Court and the attorney general, and says that the petitioner has proof that he timely filed his petition. Id. He asserts that a few days after he filed his petition for review, it was denied by the Supreme Court of Wisconsin, and says that "[t]his information is on the computer, 374 Wis. 2d 160." Id. He asks the court to "go through" the matter for reconsideration and says that he "overlooked this matter" in his objection to Judge Jones's recommendation. Id. The letter said that the petitioner "was originally confused at the specific petition the court was pertaining to," but opines that "the court should have saw this also when review my habeas petition because it is on record." Id. at 2. In a post-script, the petitioner stated that if the court still disagreed that his petition was timely, he had enclosed a motion for reconsideration brief citing Holland v. Florida, 560 U.S. 631 (2010). Id.
As the petitioner indicated, he also filed a document titled "Motion for Reconsideration Brief of Petitioner/Appellant." Dkt. No. 19. The brief indicates that the petitioner is asking the court to reconsider its dismissal based on the Supreme Court's ruling in Holland v. Florida, 560 U.S. 631 (2010), which he says stands for the proposition that "'egregious attorney misconduct' is" an extraordinary circumstance that justifies a court applying the doctrine of equitable tolling to a late-filed petition. Id. at 2. After an extended discussion of the Holland decision, and citation to subsequent Seventh Circuit decisions applying Holland, the petitioner concluded the brief by stating:
[i]n petitioner's case, Youngmark was misguided by inmates on what he needed to do in order to keep his federal time from tolling in order to file for federal habeas relief. Petitioner's counsel even failed to properly inform him of all steps he should take to properly attack his state and federal issues, or proper tolling time and due dates to file any other proceedings whether in state or federal court. Therefore this federal habeas court should grant petitioners petition for his habeas corpus, on extraordinary circumstances for equitable tolling for habeas corpus filing one-yea[r] limitation filing rule.
Along with the motion and brief, the petitioner filed seven pages of documents—new documents that were not among the hundreds of pages he'd filed in the prior twenty months. The first is a cover letter dated December 15, 2016 from Assistant Attorney General Charlotte Gibson to the clerk of the Wisconsin Supreme Court, enclosing the respondent's affidavit of no service for the petitioner's petition for review to the Supreme Court. Dkt. No. 19-1 at 1. The second is an order from the Wisconsin Supreme Court dated December 29, 2016, granting the petitioner's motion to waive filing of the required number ofcopies and granting his motion to send a copy of his petition back to him so that he could serve the Attorney General. Dkt. No. 19-1 at 4-5. Third is a letter dated January 10, 2016 from Assistant Attorney General Charlotte Gibson stating:
On December 15, 2016, I filed an affidavit of no service regarding the petitioner's petition for review in the above matter. This is to inform the court that I have been served with the petition. As stated in the affidavit of no service, the State's time to respond would not begin to run until it was served. The petition was mailed on January 7, 2016, making the State's response due January 24, 2016.
The petitioner filed a notice of appeal on March 9, 2020. Generally, "[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see also United States v. Taylor, 796 F.3d 788, 791 (7th Cir. 2015). But the petitioner also filed a motion for reconsideration on March 3—less than ten days after the court's February24, 2020 order. The notice of appeal and motion for reconsideration bring Federal Rule of Appellate Procedure 4(a)(4) into play; that rule provides:
If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
Fed. R. App. P. 4(a)(4)(B)(i). Among others, Rule 4(a)(4)(A) includes motions brought under Rule 59(e) or Rule 60(b). The scenario contemplated by Rule 4(a)(4)(B)(i) occurred here; the petitioner filed a motion for reconsideration (which remains pending) then filed a notice of appeal. Under Fed. R. App. P. 4(a)(4)(B)(i), this court retains jurisdiction to decide the motion for reconsideration because the petitioner's notice of appeal will not take effect until the court decides that motion.
"[T]he Federal Rules of Civil Procedure do not expressly recognize a 'motion to reconsider.'" United States v. Roth, No. 10 Misc. 001, 2010 WL 1541343, at *2 (E.D. Wis. April 19, 2010). Courts in the Seventh Circuit, however, generally apply the standards of Rule 59(e) or Rule 60(b) to such motions. Washington Frontier League Baseball, LLC v. Zimmerman, No. 14-cv-1862-TWP-DML, 2016 WL 4798988, at *1 (S.D. Ind. Sept. 14, 2016). Rule 59(e) allows a court to alter or amend a judgment if the party files the motion "no later than 28 days after the entry of the judgment." Rule 60(b) is available where a movant files within a "reasonable about of time" after final order and judgment. Here, the petitioner filed the motion to reconsider eight days afterthe court entered final judgment; both Rule 59(e) and Rule 60(b) are available avenues of relief for the petitioner.
"Altering or amending a judgment under Rule 59(e) is permissible when there is newly discovered evidence or there has been a manifest error of law or of fact." Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)). Rule 60(b) allows a party to seek relief from an "order" for any of six enumerated reasons, including mistake, inadvertence, newly discovered evidence, fraud, or any other reason that justifies relief. Fed. R. Civ. P. 60(b).
Under Rule 59(e), "[a] 'manifest error' is not demonstrated by the disappointment of the losing party;" it "is the 'wholesale disregard, misapplication or failure to recognize controlling precedent.'" Bilek v. Am. Home Mortg. Servicing, No. 07 C 4147, 2010 WL 3306912 at *1 (N.D. Ill. Aug. 19, 2010) (quoting Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)). "Newly discovered evidence" is evidence that was "not available at the time of briefing." Katz-Crank v. Haskett, No. 1:13-cv-00159-TWP-DML, 2014 WL 3507298, at *2 (S.D. Ind. July 14, 2014). "Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1986)). Such a motion "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce newevidence or advance...
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