MOORE
v.
SECRETARY, DEPARTMENT OF CORRECTIONS
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The court held that respondents' motion for reconsideration was untimely and failed to present grounds for relief, as the arguments raised should have been made in a timely response and did not demonstrate manifest error of law or fact.
Petitioner Moore sought to substitute his counsel with the Capital Habeas Unit (CHU) after his former counsel died. The court granted this motion. Res…
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This cause is before the Court on Respondents’ Motion for Reconsideration (Motion; Doc. 67) of the Order appointing the Capital Habeas Unit for the Middle District of Florida (CHU) to represent Petitioner Thomas James Moore (Order; Doc. 66). Moore filed a Response (Response; Doc. 69) to Respondents’ Motion for Reconsideration. On March 28, 2022, Moore, by and through CHU, filed a Motion to Substitute Counsel (Doc. 65), asking the Court to substitute the CHU as his counsel in these proceedings because his former counsel, Martin McClain, had died. Respondents did not file a response. On April 13, 2022, after expiration of the opposition time,1 the Court granted Moore’s Motion to Substitute Counsel. See generally Order. Respondents move for reconsideration of the Court’s Order. See generally Motion. Respondents initially contend CHU did not confer with them before filing the Motion to Substitute Counsel in violation of Middle District of Florida Local Rule 3.01(g). Id. at 2. According to Respondents, in his Motion to
Substitute Counsel, Moore offered no explanation as to why CHU’s representation is necessary, and why Moore cannot obtain adequate representation. Id. Respondents assert Capital Collateral Regional Counsel (CCRC) should represent Moore, and note that on April1, 2022, CCRC filed a motion in state circuit court to be appointed as substitute state postconviction counsel. Id. at 4. According to Respondents, if the state circuit court grants the motion, Moore would not be entitled to dual representation by CHU and CCRC. Id. They further assert that “Florida state law provides Moore with adequate representation through CCRC, and he is not entitled to substitute this counsel with federally-funded CHU counsel.” Id. at 5. In his Response, Moore argues Respondents filed an untimely objection. Response at 3-4. He also asserts Respondents do not have standing to object to his Motion to Substitute
Respondents fail to identity the Federal Rule of Civil Procedure under which they file the instant Motion. However, the Court will consider the Motion pursuant to Federal Rule of Civil Procedure 59(e) because Respondents filed their Motion two days after entry of the Order.2 A motion to alter or amend a judgment may be filed pursuant to Rule 59(e).3 This Rule affords the Court discretion to reconsider an order which it has entered. See Mincey v. Head, 206 F. 3d 1106, 1137 (11th Cir. 2000); O’Neal v. Kennamer, 958 F. 2d 1044, 1047 (11th Cir. 1992). “The only grounds for granting a Rule 59 motion are newly[] discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F. 3d 1335, 1343 (11th Cir. 2007) (quotations and citations omitted). This Court has interpreted those parameters to include “(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct
Motion to Substitute Counsel, CHU’s failure to confer does not excuse Respondents’ failure to file a timely response. Respondents cannot now use their Motion for Reconsideration to raise arguments that should have been included in such a response. Id.
Regardless, Respondents’ Motion is unavailing. Respondents argue Moore has not demonstrated a need for appointment of counsel; however, in
Case Numbers 3:03-cv-642-HLA and 3:04-mc-41-HES,4 the Court granted Moore’s motion and renewed motion for appointment of counsel, finding Moore was entitled to the appointment of counsel. In the latter case, the Court noted Moore would need to initiate a new action when he filed his federal petition for writ of habeas corpus. That is what he has done in this case. Therefore, Moore is entitled to the appointment of counsel. To the extent Respondents assert CHU cannot represent Moore because CCRC will likely represent Moore in state court, Respondents misunderstand the Court’s Order. The Court appointed CHU to represent Moore in his federal habeas proceeding. CHU did not ask permission, and the Court did not grant permission, for CHU to represent Moore in state court proceedings. Thus, Respondents have not asserted viable grounds to warrant the Court’s reconsideration of its Order, and the Motion is due to be denied.
DENIED.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of May, 2022.
MARCIA MORALES HOWARD
United States District Judge
Jax-9 C: Counsel of record
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