KNIGHT

v.

FLORIDA DEPARTMENT OF CORRECTIONS

filed a response in opposition to the Motion (DE 14), to which Petitioner replied (DE 17). For the reasons that follow, the Motion is denied.

On December 16, 2022, this Court issued an Order (DE 9) denying Petitioner’s Request for Appointment of Supplemental Federal Counsel/Substitute Federal Counsel to Investigate and Prepare a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254, which the Court construed as a Motion to Appoint Counsel. In the Motion to Appoint Counsel, Petitioner moved the Court to “appoint supplemental/substitute counsel to investigate and prepare [a] petition for writ of habeas corpus under [28 U.S.C.] Section 2254 presenting the claims of [] structural error and [] ineffective assistance of trial counsel.” (DE¹ at 1.) In its Order on Petitioner’s Motion to Appoint Counsel, the Court

Court stated, Petitioner has already been appointed counsel to represent him in various habeas efforts in this District. The record in Petitioner’s prior Section 2254 proceeding shows that Linda McDermott has represented Petitioner ably and dutifully. Furthermore, Petitioner has already had an opportunity to raise the claims at issue in his Motion [to Appoint Counsel].

(Id. at 3.) The Court added that McDermott’s decision not to re-raise those rejected issues was well taken, and the Court decided not to appoint new counsel for the purpose of pursuing those rejected arguments in a subsequent Section 2254 petition. (Id.) In the instant Motion, Petitioner asks the Court to alter or amend its Order dismissing this case pursuant to Federal Rule of Civil Procedure 59(e) (“Rule 59(e)”).

The only grounds for granting a Rule 59(e) motion are “newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F. 3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F. 3d 1116, 1119 (11th Cir.1999).

A Rule 59(e) motion cannot be used “to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F. 3d 757, 763 (11th Cir. 2005).

Further, “the moving party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002).

Ultimately, “the decision to grant a motion for reconsideration ‘is committed to the sound discretion of the district judge.’” Townsend v. Gray, 505 F. App’x 916, 917 (11th Cir. 2013) (quoting Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F. 2d 800, 806 (11th Cir. 1993)).

In his Motion, Petitioner presents no new evidence and raises no manifest errors or law or fact that would warrant the Court’s reconsideration of its prior Order (DE 9).

Instead, Petitioner appears to attempt to

relitigate his claims.

Therefore, the Motion is denied. In Petitioner’s Reply (DE 18) to Respondent’s Response (DE 14), Petitioner requests a certificate of appealability (“COA”)² but makes no argument in support of his request for a COA. A prisoner seeking to appeal a district court’s final order denying his Section 2254 habeas corpus petition has no absolute entitlement to appeal, and to do so, must obtain a COA. See Harbison v. Bell, 556 U.S. 180, 183 (2009) (first citing Slack v. McDaniel, 529 U.S. 473, 484–85 (2000); then citing Wilkinson v. Dotson, 544 U.S. 74, 78–83 (2005)).

Petitioner initiated this action, however, solely to seek the appointment of new counsel. Since there is no Section 2254 habeas corpus petition and, therefore, no final order denying a Section 2254 petition,³ no COA is required; the

Parties’ briefing lacks any argument or case law to the contrary. Accordingly, the request for a COA is denied.⁴

2. Petitioner's later-filed Motion to Alter or Amend Judgment (DE 13), which is a duplicate of DE 11, is DENIED AS MOOT.

3. Petitioner's Request for a Certificate of Appealability (DE 18) is DENIED.

4. This case shall remain CLOSED.

DONE AND ORDERED in Chambers in Miami, Florida, this 22nd day of September, 2023.

KATHLEEN M, WILLIAMS

UNITED STATES DISTRICT JUDGE

attempts to raise new claims that he alleges warrant relief under Section 2254, the motion would be a successive habeas petition that this Court does not have subject matter jurisdiction over, and Petitioner would be required to move the Eleventh Circuit Court of Appeals for an order authorizing the district court to consider the successive habeas petition. See Williams v. Chatman, 510 F. 3d 1290, 1295 (11th Cir. 2007). “Without such authorization, the district court lack[s] subject matter jurisdiction to consider the successive petition, and therefore [can]not issue a COA ....” /d. (citing Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003).

However, the Court advises Petitioner that the dismissal of a successive habeas petition for lack of subject matter jurisdiction is not considered a final order in a habeas corpus proceeding.

Consequently, a COA would be unnecessary to permit the Eleventh Circuit to review such an order of dismissal. See Hubbard v. Campbell, 379 F. 3d 1245, 1247 (11th Cir. 2004).

Copies furnished to:

Ronald Knight, Pro Se 610979 Union Correctional Institution Inmate Mail/Parcels P.O. Box 1000 Raiford, FL 32026

Noticing 2254 SAG Broward and North Email: [email protected]

Leslie T. Campbell Attorney General Office 1515 N Flagler Drive 9th Floor West Palm Beach, FL 33401-3432

Linda McDermott Chief—Capital Habeas Unit Office of the Federal Defender for the Northern District of Florida 227 N. Bronough St., Ste. 2400 Tallahassee, FL 32301-1300