United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEFF JUDGE
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
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
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. 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). 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).").
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).
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)).
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." 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).
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." Id. (citing Curtiss-Wright
Corp., 446 U.S. at 8).
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.
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. (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). Lloyd Noland Found., Inc., 483
F.3d at 780 (quoting In re Se. Banking Corp., 69
F.3d at 1547).
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.
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)
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  a controlling question of law[, ]
 as to which there is substantial ground for difference of
opinion[, ] and  that an immediate appeal . . . may
materially advance the ultimate termination of the
litigation." 28 U.S.C. § 1292(b).
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
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
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).
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.
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. (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.)
now asks the Court to amend its prior order to certify the
following questions for immediate appeal under section
(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.
Whether New Evidence Used to Establish the Actual Innocence
Exceptions Can Include Evidence That Was Available to Trial
Counsel but Not Used
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
Whether the Martinez-Trevino Exception Applies to
Federal Habeas Cases ...