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Rivera v. Sellers

United States District Court, S.D. Georgia, Augusta Division

June 21, 2019

REINALDO JA VIER RIVERA, Petitioner,
v.
ERIC SELLERS, Warden of the Georgia Diagnostic and Classification State Prison, Respondent.

          ORDER

          J. RANDAL HALL, CHIEFF JUDGE

         Before the Court is Petitioner Reinaldo Javier Rivera's motion to amend the Court's December 6, 2017 Order ("December 6th Order") to add a certificate permitting immediate appealability (Doc. 108} and motion to stay briefing schedule pending resolution of his motion to amend (Doc. 115). For the reasons set forth below, Petitioner's motion to amend is DENIED and his motion to stay briefing schedule is DENIED AS MOOT.

         The Court has detailed the factual and procedural background of this case in prior Orders. (See Dec. 6th Order, Doc, 96, at 1-3; Order Denying Recons., Doc. 107, at 2-4.) In this Order, the Court only notes background details directly relevant.

         I. LEGAL STANDARDS

         As an initial matter, the Court agrees with Petitioner that in the Court's reconsideration of its December 6th Order, it incorrectly construed the reconsideration request as under Rule 60(b) rather than Rule 54(b). Rule 60(b) applies to final orders only, and the December 6th Order was a non-final, interlocutory order.[1] This does not affect the validity of the reconsideration. See Charriez v. Sec'y, Fla. Dep't of Corr., 596 Fed.Appx. 890, 896 n.6 (11th Cir. 2015) (per curiam) (stating district court did not err in denying motion for reconsideration even though analyzed under Rule 60(b) rather than Rule 54(b)); Kolawole, 863 F.3d at 1368-69, 1373-74 (affirming district court's denial of reconsideration under Rule 60(b) even though already decided reconsideration was not of a final order). The Court's logic in denying Petitioner's motion for reconsideration under Rule 60(b) applies equally to Rule 54(b).[2] QBE Ins. Corp. v. Whispering Pines Cemetery, LLCƒ No. 12-0054-KD-C, 2014 WL 2921908, at *4 (S.D. Ala. June 27, 2014) ("Eleventh Circuit precedence indicates that the Court may follow the Rule 60(b) analysis when addressing a motion for relief from a non-final order."); see also Herman v. Hartford Life & Accident Ins. Co., 508 Fed.Appx. 923 (Table), 927 n.l (11th Cir. 2013) (per curiam) (citing Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 569 (11th Cir. 1990) ("Although Rule 54(b) does not delineate the parameters of a district court's discretion to reconsider interlocutory orders, we have at least indicated that Rule 54(b) takes after Rule 60(b).").

         Because the December 6th Order was a non-final order, Petitioner may only appeal it with the Court's permission under Rule 54(b) or 28 U.S.C. § 1292(b). For the following reasons, the Court finds this motion properly analyzed under section 1292(b), rather than Rule 54(b).

         A. Rule 54(b)

         Rule 54(b) allows a court to "direct entry of a final judgment as to one or more, but fewer than all, claims . . . only if . . . there is no just reason for delay." Fed.R.Civ.P. 54(b). District courts must follow a two-step analysis to determine whether Rule 54(b) certification is proper. Lloyd Noland Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773, 777 (11th Cir. (quoting Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th Cir. 1997)). 2007). "First, the court must determine that its final judgement is, in fact, both `final' and a `judgment.'" Id. (citing Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980)).

         A court's decision is considered "final" only if that decision "disposes entirely of a separable claim." Id. at 779 (quoting In re Se. Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995) . Courts have often stated, `` [T] he line between deciding one of several claims and deciding only part of a single claim is very obscure." In re Se. Banking Corp., 69 F.3d at 1547 (citing 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2657, at 67 (2d ed. 1983)). In determining whether a claim is separable, the Eleventh Circuit focuses on the relief requested, stating, "Claims are separable when there is more than one possible recovery . . . or if different sorts of relief are sought."[3] Id. (internal citations and quotation marks omitted). Therefore, "even if a district court has adjudicated one count of a complaint, but another count seeks substantially similar relief, the adjudication of the first count does not represent a `final judgment' because both counts are functionally part of the same claim under Rule 54(b)." Barnett v. MacArthur, 715 Fed.Appx. 894, 900 (11th Cir. 2017) (per curiam) (quoting Lloyd Noland Found., Inc., 483 F.3d at 780) . A judgment is "a decision upon a cognizable claim for relief." Lloyd Noland Found., Inc.ƒ 483 F.3d at 777 (quoting Curtiss-Wright Corp., 446 U.S. at 7).

         Second, if found to be a final judgment, ``the district court must then determine that there is no `just reason for delay' in certifying it as final and immediately appealable."[4] Id. (citing Curtiss-Wright Corp., 446 U.S. at 8).

         Rule 54(b) is inapplicable here because the December 6th Order did not include a final judgment as to any claim. The Court focuses on the decisions in the December 6th Order Petitioner now challenges. The Court's decisions denying the addition of facts in support of Petitioner's Ineffective Assistance of Trial Counsel (``IATC") claim and denying the use of an exception to excuse procedural default were clearly not final judgments because they disposed of facts in support of a claim and a theory of excuse, not a claim itself. The only arguable final judgement as to a claim in the December 6th Order is the denial of Petitioner's freestanding actual innocence claim.

         First, denying addition of Petitioner's actual innocence claim is not final. Although Petitioner presents many theories, his requested relief is the same under all: relief from his conviction and sentence.[5] (Pet. for Writ of Habeas Corpus, at 39; Am. Pet. for Writ of Habeas Corpus, at 55.) Because Petitioner's claim of actual innocence `` substantially overlap [s]' with remedies being sought by the remaining claims pending in [this Court]," the Court's denial of Petitioner's request to add an actual innocence claim is not a final adjudication of a claim for purposes of Rule 54(b).[6] Lloyd Noland Found., Inc., 483 F.3d at 780 (quoting In re Se. Banking Corp., 69 F.3d at 1547).

         Second, the decision to deny Petitioner's actual innocence claim is not a judgment. Having denied the actual innocence claim as not cognizable (see Dec. 6th Order, at 4), this Court's decision was not a decision upon a cognizable claim for relief.

         The Court recognizes that use of the Separate-Recoveries Test may prove problematic in a habeas corpus petition because success on any theory results in the same relief. Andrew S. Pollis, Civil Rule 54(b): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev. 711, 743 (2 013). Because the Eleventh Circuit uses the Separate-Recoveries Test, however, the Court must apply it here. Furthermore, in conjunction with the Separate-Recoveries Test, the Court finds persuasive the substantial overlap between the actual innocence claim and pending claims, factually and in relief sought, and that this Court's decision was denying the addition of a non-cognizable claim. Thus, the Court's decision to deny addition of Petitioner's actual innocence claim was not a final judgment under Rule 54(b) .[7]

         B. Section 1292(b)

         Having found Rule 54(b) inapplicable, the Court may only grant Petitioner permission for an interlocutory appeal of the December 6th Order under 28 U.S.C. § 1292(b). For the Court to authorize certification under section 1292(b), Petitioner has the burden to show the Court that the relevant order "involves [1] a controlling question of law[, ] [2] as to which there is substantial ground for difference of opinion[, ] and [3] that an immediate appeal . . . may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

         First, a controlling question of law is one that is both controlling and purely legal. A question is controlling when it is "outcome determinative." E.A. Renfroe & Co. v. Rigsby, No. 06-AR-1752-S, 2008 WL 11375424, at *2 (N.D. Ala. Jan. 17, 2008). Compare Scoggins v. Floyd Healthcare Mgmt., No. 4:I4-CV-O274-HLM-WEJ, 2016 WL 11544903, at *3 (N.D.Ga. Apr. 4, 2016) (discovery-related issue not controlling because "certainly not dispositive"), with S.R. v. United States, 555 F.Supp.2d 1350, 1360 (S.D. Fla. 2008) (controlling because the availability of equitable tolling ``is wholly dispositive as to the viability of [plaintiff's] claims"). Distinct from ``a question of fact or matter for the discretion of the trial court," a purely legal question is "more of an abstract legal issue" that "can [be] decide[d] quickly and cleanly without having to study the record"; it does not require the "application of settled law to fact." McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (citations omitted).

         Second, a difference of opinion is sufficient when "there is substantial dispute about the correctness of any of the pure law premises the district court actually applied in its reasoning leading to the order sought to be appealed." Id. at 1259. For example, there is substantial dispute when there is a circuit split over a question of law that the Eleventh Circuit has not addressed. Abner v. U.S. Pipe & Foundry, Co., No. 2:15-CV-02040-KOB, 2018 WL 3804188, at *2 (N.D. Ala. Feb. 21, 2018). However, `` [n] either the mere lack of authority on the issue nor the claim that the district court's ruling is incorrect constitutes a substantial ground for difference of opinion." Flint Riverkeeper, Inc. v. S. Mills, Inc., 261 F.Supp.3d 1345, 1347 (M.D. Ga. 2017) (citation omitted).

         Third, an immediate appeal materially advances the ultimate termination of the litigation when the court of appeals' decision "would serve to avoid a trial or otherwise substantially shorten the litigation." McFarlinf 381 F.3d at 1259 (citations omitted) (finding appeal immaterial because it would only resolve one of seven issues leaving open possibility that review may be • appropriate in future cases where not all claims would be resolved); accord Cline v. Advanced Neuromodulation Sys.Inc., No. 1:ll-CV-4064-AT, 2014 WL 11517833, at *2 (N.D.Ga. Apr. 15, 2014) (``[T]he resolution of these issues would not serve to avoid trial or otherwise substantially shorten the litigation because [p]laintiff's parallel negligent manufacturing claim is still viable . . . .") . Where the appeal would not dispose of the entire case, courts "weigh the disruptive effect of an immediate appeal on the . . . proceedings against the probability that resources will be wasted in allowing those proceedings to go forward." In re Pac. Forest Prods. Corp. v. Freeman, 335 B.R. 910, 924 (S.D. Fla. 2005) (Although "numerous other issues remain to be tried," an "immediate appeal would hasten the ultimate disposition of this case. The discovery period ... is still open[] and trial is scheduled [to occur in six months].") (emphasis in original).

         The Court also notes that section 1292(b) certification is "an extraordinary measure, which is permitted only in exceptional circumstances." Cline, 2014 WL 11517833, at *l (citing McFarlin, 3 81 F.3d at 1256). "Because permitting piecemeal appeals is bad policy, permitting liberal use of [section] 1292(b) interlocutory-appeals is bad policy." McFarlin, 381 F.3d at 1259.

         II. DISCUSSION

         In its December 6th Order, this Court, in part, denied Petitioner's (1) motion to amend his complaint adding a freestanding actual innocence claim and (2) motion for appointment of supplemental counsel to litigate whether undersigned counsel provided ineffective representation. (Dec. 6th Order, at 4.) Regarding his IATC claim, Petitioner recognized it was untimely under the Anti-Terrorism and Effective Death Penalty Act (``AEDPA"). (Mot. for Suppl. Counsel, Doc. 78, at 54.) Petitioner argued this Court should excuse his procedural default using the actual innocence exceptions.[8] (Id. at 54-58.) In its December 6th Order, the Court denied addition of the actual innocence claim because neither the Supreme Court nor Eleventh Circuit had recognized such a claim in habeas corpus proceedings and denied addition of the IATC claim because no exception was met. (Dec. 6th Order, at 34-35.)

         Petitioner now asks the Court to amend its prior order to certify the following questions for immediate appeal[9] under section 1292(b):

(1) Whether new evidence used to establish the actual innocence exceptions can include evidence that was available to trial counsel but not used;
(2) Whether the Mart ine z-Trevino exception applies to federal habeas cases arising in Georgia state courts; and
(3) Whether a freestanding claim of actual innocence is cognizable in habeas corpus proceedings.

(Pet'r's Mot. to Amend Dec. 6th Order, Doc. 108, at 7; Pet'r's Reply Supp. Mot. to Amend Dec. 6th Order, Doc. 114, at 10-11.) The Court will address each question in turn to determine whether it should be certified.

         A. Whether New Evidence Used to Establish the Actual Innocence Exceptions Can Include Evidence That Was Available to Trial Counsel but Not Used

         Even if new evidence used to establish the actual innocence exceptions can include evidence that was available to trial counsel but not used, Petitioner fails to show the actual innocence exceptions have been met. Before the Court may find Petitioner meets an actual innocence exception, it must find Petitioner has demonstrated his actual innocence. See Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1009 (11th Cir. 2012) (per curiam) ("Necessarily subsumed within th[e] question [of whether there is an actual innocence exception] is the threshold issue of whether the petitioner has demonstrated his actual innocence in the first place."). As discussed below, Petitioner has not made a claim of actual innocence. (See section II(C), infra.) Because the Eleventh Circuit's review of this issue would not alter the Court's decision that the actual innocence exceptions have not been met, the issue is not controlling and would not materially advance this litigation. Thus, this question is inappropriate for an interlocutory appeal.

         B. Whether the Martinez-Trevino Exception Applies to Federal Habeas Cases ...


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