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Bazemore v. United States

United States District Court, S.D. Georgia

July 22, 2013


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[Copyrighted Material Omitted]

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Levon Bazemore, Movant, Pro se, Jesup, Ga.

For United States Of America, Respondent: R. Brian Tanner, U.S. Attorney's Office - Savannah, Savannah, GA.


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Before the Court is Levon Bazemore's Motion to Alter or Amend Judgment or Order. ECF No. 40. [1] Bazemore asks this Court to reverse its denial of his most recent petition under 28 U.S.C. § 2255 because of an alleged clear error of law. As the Court committed no such error, Bazemore's petition is DENIED.


Thirteen years ago, after being convicted, sentenced, and after having his first habeas petition denied on the merits,

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Bazemore successfully attacked a state court conviction used to enhance his federal sentence. Since then, Bazemore has filed no fewer than six motions and petitions seeking to have this Court resentence him in light of the vacatur. See ECF No. 1; Bazemore v. United States, No. 4:96-cv-141, ECF Nos. 68; 95; 102; 131; 155. This Court denied the majority of those requests as improperly filed second or successive habeas petitions. See, e.g, Bazemore v. United States, No. 4:96-cv-141, ECF Nos. 68; 107.

Before Bazemore filed the habeas petition initiating this case, ECF No. 1, the Eleventh Circuit decided Stewart v. United States, holding that a numerically second § 2255 petition premised on the vacatur of a state conviction that occurred after the petitioner's first § 2255 petition is not " second or successive" within the meaning of § 2255(h). 646 F.3d 856, 865 (11th Cir. 2011). Two months after Stewart issued, Bazemore filed a motion arguing that Stewart, read in conjunction with Johnson v. United States, [2] justified reopening his original request for resentencing based on the vacatur of a state conviction. Bazemore v. United States, No. 4:96-cv-141, ECF No. 155.

The Court construed that motion as one under Federal Rule of Civil Procedure 60(b)(6). See id. at ECF Nos. 156 at 4-7; 160 (adopting government's response, ECF No. 156, as the reasoning of the Court). Rule 60(b)(6) requires that a movant demonstrate exceptional circumstances justifying relief from judgment, which Bazemore argued Stewart constituted. Id. at ECF No. 155. But because " [s]omething more than a mere change in law is necessary . . . to provide the grounds for Rule 60(b)(6) relief," Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996) (internal quotations omitted), this Court denied Bazemore's motion. Bazemore v. United States, No. 4:96-cv-141, ECF No. 160.

Even before the denial of his Rule 60(b)(6) motion, Bazemore filed the habeas petition underlying this suit. See ECF No. 1. He once again relied on Stewart and Johnson to argue that the vacatur of his state conviction justified resentencing. Id. at 12. But this time, Bazemore took a slightly different tack. He argued that Stewart itself reset the one year clock of § 2255(f) and therefore made his petition timely and not second or successive. Id. at 14.

This Court originally adopted the Magistrate Judge's Report and Recommendation agreeing with Bazemore. ECF No. 23. The government, however, filed a motion for reconsideration, which after much thought the Court granted. ECF No. 38. Ultimately, the Court concluded that (1)

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Stewart had nothing to say about the timeliness of a habeas petition--it only spoke to whether particular petitions fell under § 2255(h)'s second or successive rubric; and (2) Stewart did not justify equitable tolling of § 2255(f)'s statute of limitation. Id. at 2-3. Because its grant of Bazemore's habeas petition held precisely the opposite, the Court granted reconsideration and denied the petition.

Now, in what seems like a legal version of The NeverEnding Story, [3] Bazemore too has filed a motion for reconsideration. ECF No. 40. He argues that the Court's denial of his habeas petition constituted clear legal error because it held that (1) Stewart does not restart § 2255(f)'s one year statute of limitations, and (2) equitable tolling of the one year limitation period is inappropriate in this case. See ECF No. 40 at 1.


At the outset, the Court notes that " [r]econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2013). And a motion for reconsideration " cannot be used [as a vehicle to] raise argument[s] . . . that could have been raised prior to the entry of judgment." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).

Bazemore presents several new arguments, in addition to rearguing the same points raised in his habeas petition, response to the Government's motion to dismiss, and response to the Government's motion for reconsideration. [4] The Court declines to address the new arguments, but does briefly discuss why its earlier order was not error.

First, Stewart does not constitute a new fact for purposes of § 2255(f). It therefore cannot restart the one year limitation clock. Stewart " simply held that a numerically second petition raising a Johnson claim is not legally successive." ECF No. 38 at 3. In doing so, it said nothing about the timeliness of habeas petitions.

Second, equitable tolling was, and is, inappropriate in this case. That doctrine only applies if the petitioner " (1) has been pursuing his rights diligently, and (2) . . . some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (internal quotations omitted).

The Court does not dispute that Bazemore diligently pursued the vacatur and resentencing. His many motions have not been denied because of untimely filing or lackadaisical attention to advancing the ball, so to speak. But Bazemore first sought resentencing based on vacatur of a state conviction thirteen years ago. Over a decade passed before Supreme Court and Eleventh Circuit precedent shifted in Bazemore's favor. Both Bazemore's conviction and sentence therefore were long since final by the time the legal conditions supporting resentencing arose.

Bazemore has a tall mountain to climb when faced with such a strongly final judgment. Only a truly extraordinary circumstance could possibly justify reexamining a thirteen year old judgment. Stewart does not qualify.

Changes in law demonstrating that previous litigation has been decided against a

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defendant incorrectly rarely warrant equitable tolling. See Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (noting that " not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases." ). Bazemore takes issue with that proposition, arguing that he bears no responsibility for the delay between his first attempt to secure resentencing and the decision in Stewart. See ECF No. 40 at 13.

That likely is true. That also is not dispositive here. Bazemore may bear no responsibility for the passage of ten plus years before Stewart changed the law, but that is insufficient to overcome the blow to finality that would come from reopening a judgment entered over a decade ago that was correct when decided. Stewart simply is not an extraordinary circumstance that justifies either reopening Bazemore's old habeas petition, or equitably tolling the one year statute of limitation of § 2255(f).


Bazemore's motion to alter or amend judgment therefore is DENIED.

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