# Mumby v. Secretary, Department of Corrections (Charlotte County)

> District Court, M.D. Florida · January 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10104345

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

ERROL JOHN MUMBY,

Petitioner,

v. Case No.: 2:16-cv-312-FtM-38MRM

SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,

Respondents.
/
OPINION AND ORDER1
Before the Court is Petitioner Errol John Mumby’s (“Mumby”) Motion to Alter or
Amend Pursuant to2 and filed on October 30, 2019. (Doc. 35). The Respondents have
not filed a response, and the time to do so has expired. For the following reasons, the
motion is denied.
BACKGROUND
On June 26, 2009, Mumby was charged with carjacking under Fla. Stat. § 812.133
and kidnapping under Fla. Stat. § 787.01. (Ex. A1). In October 2010, a jury convicted
him of carjacking and the lesser-included offense of false imprisonment on the kidnapping
charge. (Ex. A5). Petitioner was sentenced to twenty years imprisonment. (Ex. A9).
After he exhausted his state court remedies, Mumby filed a habeas petition under 28

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using hyperlinks, the
Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
they provide, nor does it have any agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.

2 Although styled as a Rule 59(e) motion, Petitioner also moves for reconsideration under Federal Rule of
Civil Procedure 60(b). (Doc. 35 at 1-2).
U.S.C. § 2254. (Doc. 1). On September 27, 2019, the Court denied his petition on the
merits, finding Mumby received effective assistance of counsel. (Doc. 32). Now, Mumby
moves for reconsideration of this Court’s September 27, 2019 Opinion and Order under
Federal Rule of Civil Procedure 59(e) and Federal Rule of Civil Procedure 60(b). (Doc.

35). For the reasons below, the Court denies reconsideration.
LEGAL STANDARDS
A motion for reconsideration may be brought under either Rule 59(e) or Rule 60(b).
Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997). In either situation, relief
granted under these rules is within the sound discretion of the judge. See Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). In
exercising its discretion, the court balances two competing interests: the need for finality
and the need to render just rulings based on all the facts. The former typically prevails,
as reconsideration of an order is an extraordinary remedy used sparingly. See Am. Ass’n
of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003); Lamar

Adver. of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999). “A motion
for reconsideration must demonstrate why the court should reconsider its prior decision
and set forth facts or law of a strongly convincing nature to induce the court to reverse its
prior decision.” Fla. Coll. of Osteopathic Med., Inc. v. Dean Witter Reynolds, Inc., 12 F.
Supp. 2d 1306, 1308 (M.D. Fla. 1998)
Under Rule 59(e), courts have recognized three grounds justifying reconsideration:
(1) an intervening change in controlling law; (2) the availability of new evidence; and (3)
the need to correct a clear error or manifest injustice. See McCreary v. Brevard Cnty,
Fla., No. 6:09-cv-1394, 2010 WL 2836709, at *1 (M.D. Fla. July 19, 2010). “A motion to
reconsider is not a vehicle for rehashing arguments the [c]ourt has already rejected or for
attempting to refute the basis for the [c]ourt’s earlier decision.” Parker v. Midland Credit
Mgmt., Inc., 874 F. Supp. 2d 1353, 1359 (M.D. Fla. 2012); see also Michael Linet, Inc. v.
Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005). “A motion to reconsider should

raise new issues, not merely redress issues previously litigated.” PaineWebber Income
Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F. Supp. 1514, 1521 (M.D. Fla. 1995);
see also Ludwig v. Liberty Mut. Fire Ins. Co., No. 8:03-cv-2378, 2005 WL 1053691, at *11
(M.D. Fla. Mar. 30, 2005) (stating “a motion for reconsideration is not the proper forum
for [a] party to vent dissatisfaction with the Court’s reasoning”).
Under Rule 60(b), the court may relieve a party from a final judgment or order for
the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has
been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.

Fed. R. Civ. P. 60(b).
DISCUSSION
Mumby argues this Court erred in denying Grounds One, Three, and Five of his
habeas petition and, therefore, reconsideration is warranted under Federal Rule of Civil
Procedure 59(e) and Federal Rule of Civil Procedure 60(b). (Doc. 35). The Court
disagrees.
As a preliminary matter, insofar as the motion is brought under Rule 59(e), such
motion is untimely. Under Federal Rule of Civil Procedure 59(b), “[a] motion for new trial
must be filed no later than 28 days after the entry of the judgment.” A district court “must
not extend the time” to file a Rule 59(b) motion. Fed. R. Civ. P. 6(b)(2). The Eleventh

Circuit has “stressed repeatedly the jurisdictional, non-discretionary character of the Rule
6(b) admonition regarding the filing deadlines for such post-trial motions.” Pinion v. Dow
Chem., U.S.A., 928 F.2d 1522, 1526 (11th Cir. 1991) (citations omitted). Under Fed. R.
Civ. P. 59(b), Mumby’s deadline to file a Rule 59(e) motion was October 25, 2019—that
is, twenty-eight days after the entry of the judgment. Because [t]he prisoner mailbox rule
applies to Rule 59(e) motions,” the Court looks at the date Mumby signed, executed, and
delivered his motion to prison authorities for mailing. Brown v. Taylor, 829 F.3d 365, 369
(5th Cir. 2016) (citation omitted); see also Adams v. United States, 173 F.3d 1339, 1341
(11th Cir. 1999). The date stamp on the motion shows Mumby provided his document to
the prison authorities for mailing two days late on October 27, 2019. (Doc. 35 at 1, 9).

Thus, his 59(e) motion is time-barred.
Even looking at Mumby’s motion substantively, the Court finds Petitioner has not
demonstrated any basis for reconsideration under Rule 59(e) or 60(b). He has shown
neither any intervening change in controlling law or new evidence that has become
available. He similarly fails to show how reconsideration is necessary to correct a clear
error or prevent manifest injustice. Instead, Mumby uses this motion to re-litigate the
issues the Court already considered and rejected. What is more, a review of the
applicable law shows the Court has not committed any mistake in interpreting the law or
the facts. At its core, Mumby’s motion asks this Court to reassess its decision, meanwhile
failing to consider why his arguments to the contrary failed. The Court stands behind its
findings and thus denies Mumby’s motion.
Accordingly, it is now
ORDERED:

Petitioner Errol John Mumby’s Motion to Alter or Amend Pursuant to Fed. R. Civ.
P. Rule 59(e) (Doc. 35) is DENIED.
CERTIFICATE OF APPEALABILITY (“COA”) AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

Because the denial of a Rule 59(e) and Rule 60(b) motion constitutes a final order
in a habeas proceeding, a certificate of appealability is required before Petitioner will be
allowed to appeal this Order. Perez v. Sec’y, Dep’t of Corr., 711 F.3d 1263, 1264 (11th
Cir. 2013); Delgado v. Sec’y, DOC, No. 2:14-CV-42-FTM-38MRM, 2018 WL 1806586, at
*3 (M.D. Fla. Apr. 17, 2018); see also 28 U.S.C. § 2253(c)(1). “A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner “must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 335–36 (2003) (citations omitted). Upon review of the record, the
Court finds that Petitioner has not made the requisite showing in these circumstances. 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Finally, because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma
pauperis.
DONE and ORDERED in Fort Myers, Florida this 8th day of January, 2020.

oie WOblotet ke 7
UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104345. Public record. Not legal advice.