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Turner v. Dragovich

United States District Court, E.D. Pennsylvania

February 25, 2015



CAROL SANDRA MOORE WELLS, Chief Magistrate Judge.

Presently before the court is a motion to alter or amend the judgment filed by William D. Turner ("Petitioner") pursuant to Fed.R.Civ.P. 59(e) ("Rule 59(e)"). Petitioner is currently serving a life sentence at the State Correctional Institution-Frackville. The Honorable Jeffrey L. Schmehl referred Petitioner's Rule 59(e) motion to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Petitioner's motion be denied.

On May 30, 2000, the undersigned filed a Report and Recommendation ("First Report") which found that Petitioner's habeas corpus petition was time-barred. The district court approved and adopted the First Report on July 25, 2000 and, on August 16, 2002, the Third Circuit affirmed that decision. Next, on December 8, 2002, the U.S. Supreme Court denied certiorari. Turner v. Shannon, 537 U.S. 1073 (2002). Since then, Petitioner has filed several motions under Fed.R.Civ.P. 60 ("Rule 60"), seeking relief from the final judgment in this case. After Petitioner's last Rule 60 motion was denied, on March 28, 2014, he filed the instant Rule 59(e) motion.

Rule 59(e) allows the district court a very limited period of time, before the time to appeal the judgment expires, to correct any mistakes the court may have made in rendering the judgment.[1] See Blystone v. Horn, 664 F.3d 397, 414 (3d Cir. 2011). Once the time to appeal has expired, the only way to seek relief from a judgment in the district court is via Rule 60. See Blystone, 664 F.3d at 413. Petitioner has already appealed his judgment, albeit unsuccessfully, as well as sought Rule 60 relief numerous times, once his judgment became final. Hence, Petitioner's request for Rule 59(e) relief is inappropriate.

Accordingly, Petitioner is not eligible for relief under Fed.R.Civ.P. 59(e) and his motion should be denied. Reasonable jurists would not debate this court's disposition of Petitioner's motion; therefore, to the extent a certificate of appealability is viable in the procedural posture of this case, one should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). I make the following:


AND NOW, this 25th day of February, 2015, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that Petitioner's Fed.R.Civ.P. 59(e) motion DENIED. Petitioner has not demonstrated that any reasonable jurist could find this court's ruling debatable, nor shown denial of any federal constitutional right; hence, there is no probable cause to issue a certificate of appealability, if one is viable.

Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely objections may constitute a waiver of any appellate rights.

It be so ORDERED.


AND NOW, this day of _____, 2015, upon consideration of the Petitioner's Rule 59(e) Motion, the Commonwealth's Response thereto, the other documents filed by the parties, and after review of the Report and Recommendation of Chief United States Magistrate Judge Carol Sandra Moore Wells, is hereby ORDERED that:

1. The Report and Recommendation is APPROVED AND ADOPTED;
2. The Rule 59(e) Motion is DENIED;
3. Petitioner has neither shown denial of a federal constitutional right, nor established that reasonable jurists would disagree with this court's procedural disposition of his claims. Consequently, a certificate of appealability is DENIED.



Enclosed herewith please find a copy of the Report and Recommendation filed by United States Magistrate Judge WELLS, on this date in the above captioned matter. You are hereby notified that within fourteen (14) days from the date of service of this Notice of the filing of the Report and Recommendation of the United States Magistrate Judge, any party may file (in duplicate) with the clerk and serve upon all other parties written objections thereto (See Local Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report & Recommendation shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.

In accordance with 28 U.S.C. §636(b)(l)(B), the judge to whom the case is assigned will make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The judge may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge, receive further evidence or recommit the matter to the magistrate judge with instructions.

Where the magistrate judge has been appointed as special master under F.R.Civ.P 53, the procedure under that rule shall be followed.

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