United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Jean Jocelyn
Merilien's (“Petitioner”) Motion for
Reconsideration . Also before the Court is
Petitioner's Motion for Copies to Prepare Appeal ,
Petitioner's Amended Emergency Motion for Copies for
Appeals Purposes , and Petitioner's Motion to Change
Warden Name .
19, 2006, Petitioner, currently confined in Wilcox State
Prison in Abbeville, Georgia, entered a negotiated guilty
plea to two counts of malice murder, for which he received
consecutive life sentences, and possession of a firearm
during the commission of a crime, for which he received a
consecutive five year sentence. ([14.2] at 1-2). Petitioner,
a Haitian national, confessed to police that, on October 30,
2004, he “shot and killed his wife, with an automatic
rifle, in the house with his children present and then gunned
down and killed his mother-in-law in the same house.”
([14.2] at 6; [14.3] at 21, 24-34). Petitioner did not
appeal. ( at 2). On December 6, 2006, Petitioner filed a
motion to withdraw his guilty plea, which on December 12,
2007, the court dismissed for lack of jurisdiction. ([14.2]
at 2). On August 24, 2007, Petitioner filed a state habeas
petition, which was denied on December 11, 2009. ([14.2] at
1). On September 7, 2010, the Georgia Supreme Court denied
Petitioner's application for a certificate of probable
cause to appeal. ([14.4] at 1).
October 7, 2010, Petitioner filed his original Section 2254
petition. ( at 32). As required by the Magistrate
Judge's order, ( at 1-2), on May 10, 2014, Petitioner
submitted his amended petition. On April 10, 2017, the
Magistrate Judge issued his Final Report and Recommendation
 (“Final R&R”) recommending that the
petition be denied. On June 9, 2017, the Court adopted the
Magistrate Judge' Final R&R and denied
Petitioner's Section 2254 petition. ( at 27). The
Court found that the Georgia Supreme Court's adjudication
of Petitioner's claims regarding ineffective assistance
of trial counsel, pre-guilty plea errors, and voluntariness
of his guilty plea warranted deference. ( at 17-20). The
Court also rejected Petitioner's claim of actual
innocence, which he argued allowed his procedurally barred
claims to be considered. ( at 23). The Court held that
Petitioner failed to provide reliable proof of actual
innocence, and Petitioner's purported proof of actual
innocence did not establish that it was more likely than not
that no reasonable juror would have convicted Petitioner.
( at 25).
22, 2017, Petitioner filed his Motion for Reconsideration. In
it, Petitioner argues that the Court overlooked “newly
discovered evidence” filed as exhibits to his Amended
Habeas Petition  to support his claim of actual
innocence, including Plaintiff's Nextel cell phone
records and affidavits and testimony from Leonie Cadet
Merilien, Marie Veronique Merilien, Detective Brever Thomas,
Assistant District Attorney Paul Stalcup's testimony.
( at 1-16).
motion for reconsideration made after final judgment falls
within the ambit of either Rule 59(e) (motion to alter or
amend a judgment) or Rule 60(b) (motion for relief from
judgment or order).” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 n.5
(11th Cir. 1993). The Court does not reconsider its orders as
a matter of routine practice. LR 7.2 E., NDGa. The
Court's Local Rules require the parties to file motions
for reconsideration “within twenty-eight (28) days
after entry of the order or judgment.” Id.
appears to seek reconsideration pursuant to Rule 59(e).
Motions for reconsideration under Rule 59(e) are appropriate
only where there is newly-discovered evidence or a need to
correct a manifest error of law or fact. See Hood v.
Perdue, 300 F. App'x 699, 700 (11th Cir. 2008)
(citing Pres. Endangered Areas of Cobb's History,
Inc. v. U.S. Army Corps of Eng'rs, 916 F.Supp. 1557,
1560 (N.D.Ga. 1995), aff'd, 87 F.3d 1242 (11th
Cir. 1996)); Arthur, 500 F.3d at 1343 (“The
only grounds for granting [a Rule 59] motion are
newly-discovered evidence or manifest errors of law or
fact.”); Jersawitz v. People TV, 71 F.Supp.2d
1330, 1344 (N.D.Ga. 1999).
motion for reconsideration should not be used to present the
Court with arguments already heard and dismissed, or to offer
new legal theories or evidence that could have been presented
in the previously-filed motion. See Arthur, 500 F.3d
at 1343; O'Neal v. Kennamer, 958 F.2d 1044, 1047
(11th Cir. 1992); Bryan v. Murphy, 246 F.Supp.2d
1256, 1259 (N.D.Ga. 2003); see also Jones v. S. Pan
Servs., 450 F. App'x 860, 863 (11th Cir. 2012)
(“A motion to alter or amend a judgment cannot be used
to relitigate old matters, raise arguments, or present
evidence that could have been raised prior to the entry of
judgment.”); Pres. Endangered Areas, 916
F.Supp. at 1560 (“A motion for reconsideration is not
an opportunity for the moving party and their counsel to
instruct the court on how the court ‘could have done it
better' the first time.”). Whether to grant a
motion for reconsideration is within the sound discretion of
the district court. See Region 8, 993 F.2d
does not present any newly discovered evidence, change in
controlling law, or need to correct a clear error of law or
fact to support his Motion for Reconsideration.
Petitioner's argument in his Motion for Reconsideration
is based on evidence previously presented to the Court.
(See  at Ex. 6). The factual support Petitioner
presented consists of exhibits attached to his Amended Habeas
Petition , which the Court reviewed and considered when
it adopted the Magistrate Judge's Final R&R on June
9, 2017. Petitioner may not again make arguments and present
evidence previously heard and dismissed by the Court.
Petitioner's Motion for Reconsideration is
denied. '