United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanska Chief United States District Judge
2, 2017, the court denied Petitioner's Writ of Habeas
Corpus and declined to issue a certificate of appealability.
Formica v. Clarke. No. 7:16CV00342, 2017 WL 2418319
(W.D. Va. Jun. 2, 2017). Petitioner, a Virginia inmate
proceeding pro se, filed a motion to alter or amend the
judgment pursuant to Rule 59 of the Federal Rules of Civil
Procedure. For the reasons that follow, the motion is
may amend or alter a judgment under Rule 59(e) "(1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest
injustice." Hutchison v. Staton, 994 F.2d 1076,
1081 (4th Cir. 1993). "Importantly, however, a Rule
59(e) motion for reconsideration may not be used to
'reargue the facts and law originally argued in the
parties' briefs."' Projects Mgmt Co. v.
DynCorp Int'l. L.L.C.. 17 F.Supp.3d 539, 541 (E.D.
Va. 2014) (quoting United States v. Smithfield
Foods. 969 F.Supp. 975, 977 (E.D. Va. 1997)). This
standard is narrowly construed, as a Rule 59(e) motion is
'"an extraordinary remedy which should be used
sparingly."' Pac. Ins. Co. v. Am. Nat'l Fire
Ins. Co.. 148 F.3d 396, 403 (4th Cir. 1993) (quoting 11
Wright et al., Federal Practice and Procedure § 2810.1,
at 124 (2d ed. 1995)); see Durkin v. Taylor. 444
F.Supp. 879, 889 (E.D. Va. 1977) ('Whatever may be the
purpose of Rule 59(e) it should not be supposed that it is
intended to give an unhappy litigant one additional chance to
sway the judge.").
claims that the court has erred by holding that his petition
is time-barred. He asserts that he is entitled to equitable
tolling of the statute of limitations because of "the
magnitude of trial defense counselor's misleading legal
advice, incorrect legal advice, fraudulent promises and
Petitioner's diligence." Decl. in Supp. of
Pet'r's Mot. for New Trial and to Amend Findings of
Fact 3, ECF No. 31.
is merely presenting issues that the court already ruled
upon, either expressly or by reasonable implication, when the
court denied petitioner's habeas application and declined
to issue a certificate of appealability. He has failed to
show an intervening change in controlling law, new evidence
not available at trial, a clear error of law, or manifest
injustice. However, even though Petitioner's motion does
not satisfy the requirements of Rule 59(e), the court will
briefly discuss his arguments.
equitable tolling, Petitioner offers Merriam Webster's
definition of diligence and then states that he was diligent
in filing his state petitions and appeals, and that
"[d]iligence is an act and ignorance would be failure to
act. The petition has been diligent." Id. at 8.
. Petitioner fails to cite any new evidence or any caselaw
that supports his proposition that he was diligent regarding
his federal habeas filing. Meanwhile, the Supreme Court of
the United States has only recognized "due
diligence" in certain circumstances, such as when a
claimant filed a defective pleading during the statutory
period, where the claimant has actively pursued filing the
proper forms despite being abandoned by counsel, and where
the complainant has been induced or tricked by his
adversary's misconduct into allowed the filing deadline
to pass. See, e.g.. Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990) (citing
Baldwin Cnty. Welcome Ctt. v. Brown. 466 U.S. 147,
151 (1984)); Holland v. Florida. 560 U.S. 631, 653
(2010). Further, "equitable tolling is not warranted for
'a garden variety claim of excusable neglect.'"
Holland, 560 U.S. at 633 (quoting Irwin,
498 U.S. at 96). Thus, Petitioner has not shown that he was
diligent in his federal filing.
also states that "the hardships of the limitations of
prison" were the extraordinary circumstance that
prevented his timely filing. However, Formica has not alleged
nor demonstrated anything beyond ordinary prison limitations.
See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.
2009) ("Ordinary prison limitations on
[petitioner's] access to the law library and copier
(quite unlike the denial altogether of access to his personal
legal papers) were neither 'extraordinary' nor made
it 'impossible' for him to file his petition in a
timely manner. Given even the most common day-to-day security
restrictions in prison, concluding otherwise would permit the
exception to swallow the rule.").
Petitioner has not properly demonstrated that he exercised
due diligence and that extraordinary external circumstances
prevented the timely filing of his federal habeas petition.
As the court previously held, Petitioner's imprisoned
status and his lack of knowledge about legal process do not
support granting such extraordinary relief. See Harris v.
Hutchinson. 209 F.3d 325, 330 (4th Cir. 2000).
a certificate of appealability is required to appeal the
denial of a motion to alter or amend a judgment in a habeas
case. The court denies the petitioner a certificate of
appealability, because jurists of reason would not find the
court's resolution of petitioner's motion for
reconsideration to be debatable.
the court DENIES the motion alter or amend
the judgment, ECF No. 15. The court further