United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young United States Magistrate Judge.
Lowe, a Virginia state prisoner proceeding pro sc,
brings this petition pursuant to 28 U.S.C. § 2254
("§ 2254 Petition, " ECF No. 1) challenging
his conviction in the Circuit Court of the County of
Chesterfield, Virginia (hereinafter, "Circuit
Court"}. By Memorandum Opinion and Order entered on
January 22. 2018. the Court granted Respondent's Motion
to Dismiss, denied Lowe's $ 2254 Petition, dismissed the
action, and denied a certificate of appealability
("COA"). (ECF Nos. 43, 44.) On January 26. 2018,
the Court received Lowe's notice of appeal, and
accompanying "MOTION FOR CERTIFICATION OF APPEAL"
and "MOTION FOR ORDER OF DESIGNATION OF RECORD ON
APPEAL." (ECF Nos. 47. 48.) If Lowe wishes to challenge
this Court's denial of a COA, he should file such a
challenge with the United States Court of Appeals for the
Fourth Circuit. Local Rule for the United Slates Court of
Appeals for the Fourth Circuit 22(a)(1)(A) contemplates that
review of a district court's denial of a COA should be
directed to the Fourth Circuit not the district court. 4th
Cir. Loc. R. 22(a)(1)(A) (when "die district conn has
not granted a [COA] . .. appellant may submit a request for a
[COA] with the Court of Appeals specifying the issues on
which the appellant seeks authorization to appeal and giving
a statement of the reasons why a certificate should be
issued"). Accordingly, Lowe's "MOTION FOR
CERTIFICATION OF APPEAL (ECF No. 47) is DENIED.
to the extent that Lowe desires the "entire file"
be sent to the Fourth Circuit, the Fourth Circuit will
request the records it needs to review his case. Lowe's
"MOTION FOR ORDER OF DESIGNATION OF RECORD ON
APPEAL" (ECF No. 48) is DENIED.
January 31, 2018, the Court received "OBJECTIONS TO
MAGISTRATE REPORT AND RECOMMENDATIONS." (ECF No.
As a preliminary matter, the Court did not enter a Report and
Recommendation and therefore there is nothing to which Lowe
can object. However, because the Court received these
Objections within twenty-eight days after the entry of the
January 22, 2018 Memorandum Opinion and Order, the Court will
construe this submission as a motion filed pursuant to
Federal Rule of Civil Procedure 59(e) ("Rule 59(e)
Motion, " ECF No. 51). See MLC Auto., LLC v. Town of
S. Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (filings
made within twenty-eight days after the entry of judgment
construed as Rule 59(e) motions (citing Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978))).
Fourth Circuit has recognized three grounds for relief 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." Hutchinson v.
Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (citing
Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406,
1419 (D. Md. 1991); Atkins v. Marathon LeTourneau
Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)). The Court
construes Lowe's submission as a request for relief under
Rule 59(e) to correct a clear error of law.
Rule 59(e) Motion is rambling and is not clearly directed at
a specific conclusion of the Court. Lowe first argues that
the Court erred when it found that Lowe had defaulted his
claims and that the district court should have conducted an
evidentiary hearing. (Rule 59(e) Mot. 1, 3.) While Lowe cites
several cases to suggest that he did not default his claims,
his meandering argument makes little sense. Lowe fails to
demonstrate any clear error of law in the conclusion that his
claims are defaulted and barred from review here. The
remainder of Lowe's Rule 59(e) Motion appears to re-argue
his claims from his § 2254 Petition and to continue to
advance allegations about unrelated conspiracy theories.
(See, e.g., ECF No. 51, at 5, 6.) Because Lowe fails
to identify any clear error of law in the Court's
conclusions, he is not entitled to Rule 59(e) relief.
Accordingly, his Rule 59(e) Motion (ECF No. 51) will be
on February 6, 2018, Lowe filed a "Motion to Amend
Motion for Set Aside" ("Motion to Amend, " ECF
No. 52.) The Court construes this submission as raising
additional arguments for Rule 59(e) relief. In the Motion to
Amend, Lowe takes issue with Virginia Supreme Court Rule 5:7
and argues that the Commonwealth has "tricked [him] into
filing [an] incomplete habeas corpus petition" and
that there are "no published rules for the alleged
'appeal of petition of habeas corpus'."
(Id. at 1-2.) Lowe already advanced this argument in
his § 2254 Petition, and the Court found that it failed
to excuse his default. (ECF No. 43, at 8.) As clearly
explained in the Court's Memorandum Opinion, Lowe
appealed the denial of his state habeas petition by the
Circuit Court to the Supreme Court of Virginia. Therefore,
Supreme Court Rule 5;l7(c)(1)(iii) governed his filing, and
Lowe was required to identify appropriate assignments of
error. (ECF No. 43, at 3-4, 6-7.) Contrary to Lowe's
belief, this Rule is clearly published. Lowe again fails to
identify any clear error of law, and his Motion to Amend (ECF
No. 52) will be DENIED.
appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(A). A COA will not issue unless a prisoner makes
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this requirement only when "reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were 'adequate lo deserve
encouragement to proceed further.'" Slack v.
McDanid, 529 U.S. 473, 484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880. 893 n.4 (1983)). Lowe fails to
meet this standard. A certificate of appealability will be
appropriate Final Order will accompany this Memorandum
 The Court employs the pagination
assigned by the CM/ECF docketing system for citations to this