Sean Reilly v. Guelsy M. Herrera

Case: 16-17527 Date Filed: 04/03/2018 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-17527

Non-Argument Calendar

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D.C. Docket No. 1:13-cv-23077-WJZ

SEAN P. REILLY,

Plaintiff - Appellant,

versus

GUELSY M. HERRERA,

individual capacity,

ERIC ABRAHAMSEN,

individual capacity,

JENNIFER CHRISTINE DAVIS,

JIM H. DAVIS,

CARMEN I. GONZALEZ, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Georgia

________________________

(April 3, 2018)

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Before MARCUS, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Sean P. Reilly, proceeding pro se, appeals from the district court’s denial of

three post-judgment motions—a Rule 60(b) motion, a Rule 59(e) motion, and a

motion for reconsideration—in his 42 U.S.C. § 1983 action, alleging, in part, that

the defendants violated his Fourth and Fourteenth Amendment rights by conspiring

to unlawfully seize him and send him to jail for a supervised release violation.

Because Mr. Reilly’s post-judgment motions essentially challenge our ruling in his

previous appeal, his claim is barred by the law-of-the-case doctrine. Accordingly,

we affirm.

I

Mr. Reilly originally filed his civil rights complaint in 2013. The district

court dismissed the claim sua sponte, ruling (as relevant here) that the favorable-

termination requirement of Heck v. Humphrey, 512 U.S. 477, 487 (1994), barred

the complaint because it challenged the revocation of Mr. Reilly’s supervised

release. Mr. Reilly appealed the dismissal, arguing that a concurring opinion in

Spencer v. Kemna, 523 U.S. 1, 18–21 (1998) (Souter, J., concurring), provides an

exception to Heck that allows him to challenge his supervised release revocation

under § 1983 because he is no longer in custody pursuant to the challenged

conviction. We affirmed the dismissal of his complaint, concluding that Mr.

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Reilly’s claim falls squarely within the purview of Heck. See Reilly v. Herrera,

622 F. App’x 832, 834–35 (11th Cir. 2015) (“Reilly I”).

Mr. Reilly filed a petition for rehearing en banc, arguing that the panel erred

in finding that he did nothing to challenge his supervised release revocation while

he was in custody. He asserted—for the first time—that he had appealed his

revocation in state court. Mr. Reilly also claimed that the panel’s decision

conflicted with the “authoritative decisions of other United States Courts of

Appeal” that have addressed Heck’s favorable-termination bar. We denied his

petition in September of 2015.

In 2016, Mr. Reilly filed the first two motions at issue in the present

appeal—a Rule 60(b) motion in May and a self-styled Rule 59(e) motion in July—

challenging our rulings in Reilly I. Mr. Reilly argued that relief under Rule 60(b)

was appropriate because he could show sufficiently extraordinary circumstances to

justify relief. He further asserted that we erred in declining to apply Justice

Souter’s proposed Heck exception (as set out in his Spencer concurrence) to his

claim because he had appealed his supervised release revocation in state court and

had sought state post-conviction relief—the same arguments he raised in

petitioning for rehearing en banc. Mr. Reilly also argued that our decision in

Reilly I created a “de facto exhaustion requirement” for § 1983 plaintiffs with no

clear standard or guidance for how the requirement should be applied.

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The district court denied Mr. Reilly’s motions because they were untimely

and did not state a cognizable basis upon which relief could be granted from our

rulings. Mr. Reilly then moved for a certificate of appealability, which the district

court construed as a notice of appeal. He also moved for reconsideration of the

denial of his motions – the third motion at issue in this appeal. The district court

denied his motion for reconsideration because the notice of appeal divested it of

jurisdiction over matters involved on appeal. Thereafter, Mr. Reilly filed a formal

notice of appeal.

On appeal, Mr. Reilly reasserts the arguments he raised in Reilly I and in his

petition for rehearing en banc. He also argues that his post-judgment motions were

not untimely because they were filed within a reasonable time after the Supreme

Court denied his petition for certiorari. He further contends that the district court

abused its discretion in denying the post-judgment motions because he established

that we relied on erroneous facts when we decided Reilly I. Finally, he argues that

the district court erred when it failed to consider his motion for reconsideration

because it misconstrued his application for a certificate of appealability as a notice

of appeal.

In addition, Mr. Reilly has moved for us to certify a question of law to the

United States Supreme Court pursuant to 28 U.S.C. § 1254(2). He essentially

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requests that we “certify” a condensed version of the arguments he raises on appeal

directly to the Supreme Court.

II

We review the denial of post-judgment motions under Rules 60(b) and 59(e)

for an abuse of discretion. See Bender v. Mazda Motor Corp., 657 F.3d 1200,

1202 (11th Cir. 2011); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299,

1317 (11th Cir. 2013). We likewise review a district court’s ruling on a motion for

reconsideration for abuse of discretion. See Richardson v. Johnson, 598 F.3d 734,

740 (11th Cir. 2010). “A district court abuses its discretion if it applies an

incorrect legal standard, follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001). As a general

matter, we may affirm on any ground supported by the record. See LeCroy v.

United States, 739 F.3d 1297, 1312 (11th Cir. 2014).

III

To the extent that Mr. Reilly seeks to challenge our decision in Reilly I, his

contention is barred by the law-of-the-case doctrine. See Mega Life & Health Ins.

Co., 585 F. 3d at 1405. Under this doctrine, findings of fact and conclusions of

law by an appellate court generally are binding in all later proceedings in the same

case in the trial court or on a later appeal. See Mega Life & Health Ins. Co. v.

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Pieniozek, 585 F.3d 1399, 1405 (11th Cir. 2009). The doctrine, however, does not

bar reconsideration of an issue if (1) a later trial produces substantially different

evidence; (2) controlling authority has since made a contrary decision of law

applicable to that issue; or (3) the prior decision was clearly erroneous and would

work a manifest injustice. Id.

Mr. Reilly does not allege that a later trial produced substantially different

evidence or that any new controlling authority applies to his claim. As such,

neither exception to the doctrine applies. Instead, the thrust of Mr. Reilly’s current

argument is that he would have been entitled to relief under Spencer but for our

erroneous finding that he failed to pursue state court remedies.

Under § 1983, a person acting under color of state law may be held liable for

causing the deprivation of “any rights, privileges, or immunities secured by the

Constitution.” 42 U.S.C. § 1983. A § 1983 suit for damages must be dismissed,

however, if “a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. In a concurring

opinion in Spencer, Justice Souter discussed the implications of Heck and opined

that a “former prisoner, no longer ‘in custody’” should be allowed to “bring a §

1983 claim establishing the unconstitutionality of a conviction or confinement

without being bound to satisfy a favorable-termination requirement that it would be

impossible as a matter of law for him to satisfy.” Spencer, 523 U.S. at 21 (Souter,

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J., concurring). To date, however, neither the Supreme Court nor this Court has

applied the exception described in Justice Souter’s concurrence in a published

opinion.

Justice Souter’s concurring opinion in Spencer did not overturn Heck’s bar

on § 1983 actions challenging the validity of the claimant’s conviction or sentence.

See Heck, 512 U.S. at 487. Therefore, even if we erred in finding that Mr. Reilly

had not pursued his state court remedies, our ruling was not clearly erroneous and

did not result in manifest injustice because Heck is still controlling law. See Mega

Life & Health Ins. Co., 585 F.3d at 1405. Mr. Reilly, therefore, does not satisfy

the third exception to the law-of-the-case doctrine.

In addition, Mr. Reilly’s argument that he diligently pursued and exhausted

state court remedies challenging his revocation of supervised release fails because

he did not assert it in the initial brief in Reilly I. In fact, he did not raise this

argument until he filed a petition for rehearing en banc in Reilly I. We have

repeatedly declined to consider issues raised for the first time in a petition for

rehearing. See, e.g., United States v. Levy, 416 F.3d 1273, 1275 (11th Cir. 2005);

United States v. Martinez, 96 F.3d 473, 475 (11th Cir. 1996); Scott v. Singletary,

38 F.3d 1547, 1552 (11th Cir. 1994); Dunkins v. Thigpen, 854 F.2d 394, 399 (11th

Cir. 1988); Holley v. Seminole County Sch. Dist., 763 F.2d 399, 400–01 (11th Cir.

1985). Mr. Reilly cannot now seek to press an issue that he failed to properly

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present in his first appeal, and which we have already declined to hear in his

petition for rehearing en banc.

Taking each of Mr. Reilly’s remaining arguments in turn, the district court

did not abuse its discretion when it concluded that the post-judgment motions were

untimely. Rule 59(e) allows a party to move to alter or amend judgment in a civil

case no later than 28 days after entry of the judgment. See Fed. R. Civ. P. 59(e).

“A court must not extend the time to act under Rule [59(e)].” Fed. R. Civ. P.

6(b)(2). See also Green v. DEA, 606 F.3d 1296, 1300 (11th Cir. 2010) (finding

that Rule 6(b)(2) prohibits extending the time to file a Rule 59(e) motion, even

where the district court erroneously grants a defendant an extension of time to file

a motion for reconsideration). However, when a Rule 59(e) motion is filed more

than 28 days after the entry of judgment and the grounds stated would be a basis

for Rule 60(b) relief, the district court may treat it as a motion for relief from

judgment under Rule 60(b). See Nisson v. Lundy, 975 F. 2d 802, 806 (11th Cir.

1992).

Under Rule 60(b), a court may relieve a party of a final order or judgment

for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence that could not previously have been discovered with reasonable diligence;

(3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void

judgment; (5) a judgment that has been satisfied, released, or discharged, that is

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based on an earlier judgment that has been reversed or vacated, or that it would no

longer be equitable to apply prospectively; or (6) any other reason that justifies

relief. See Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made

“within a reasonable time—and for reasons (1), (2), and (3) no more than a year

after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ.

P. 60(c).

Mr. Reilly’s post-judgment motions were filed more than two years after the

district court dismissed his § 1983 action—well beyond the 28-day limitation

imposed under Rule 59(e) and the one-year time limit under Rule 60(b)(1), (2), and

(3). Mr. Reilly also specifically invoked Rule 60(b)(6), a subsection which

provides that the court may relieve a party from a final order based on “any other

reason that justifies relief.” Fed. R. Civ. P. 60(6)(6). Although this catch-all

provision has no strict time limitation, it is intended “only for extraordinary

circumstances.” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th

Cir. 2000). Thus, “[Mr. Reilly] must do more than show that a grant of [his]

motion might have been warranted. [He] must demonstrate a justification for relief

so compelling that the district court was required to grant [his] motion.” Rice v.

Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996).

Even assuming that Mr. Reilly filed his Rule 60(b)(6) motion within a

“reasonable time,” no extraordinary circumstances cause us to conclude that the

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district court abused its discretion. In addition, Mr. Reilly’s post-judgment

motions challenged our factual findings and legal conclusions in Reilly I—but

neither Rule 60(b) nor Rule 59(e) grants a district court the authority to alter,

amend, or grant relief from an appellate court’s rulings. The district court’s denials

of Mr. Reilly’s post-judgment motions were not an abuse of discretion because it

lacked the authority to grant Mr. Reilly the relief he sought. See Chicago Tribune

Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).

Likewise, the district court did not err when it interpreted Mr. Reilly’s

mislabeled “application for a certificate of appealability” as a notice of appeal

because the motion, in effect, was cognizable as a formal notice of his intent to

request review of the district court’s order. “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Hughes v. Lott, 350 F. 3d 1157, 1160 (11th Cir. 2003)

(quotation omitted). Here, Mr. Reilly’s application for a certificate of appealability

clearly expressed an intent to “appeal issues in the . . . [district court’s] denial of

the Rule 60(b)(6) and Rule 59(e) motions.” D.E. 51 at 1. Therefore, the district

court properly construed the application as a notice of appealability and

appropriately determined that it lacked jurisdiction to consider Mr. Reilly’s

subsequent motion for reconsideration.

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Finally, as to Mr. Reilly’s request that we certify a question to the Supreme

Court of the United States, we decline to do so. Certification of questions pursuant

to 28 U.S.C.A. § 1254 rests in the discretion of the Courts of Appeal and cannot be

invoked by a party as a matter of right. See 28 U.S.C.A. § 1254. See also

Rutherford v. American Medical Ass’n, 379 F.2d 641, 644–45 (7th Cir. 1967)

(declining to certify plaintiffs’ questions where the disposition of the appeal left

plaintiffs with the right to seek review by petition to the Supreme Court for a writ

of certiorari). Moreover, “the Supreme Court has discouraged the use of this

certification procedure and has accepted certified questions only four times in the

last 60 years.” In re Hill, 777 F.3d 1214, 1225 (11th Cir. 2015). In fact, the

Supreme Court has admonished that the certification procedure is proper only in

“rare instances.” See id. (citing to Wisniewski v. United States, 353 U.S. 901, 902

(1957)) (quotation omitted).

Although Mr. Reilly contends that his appeal raises questions of great public

importance, the issues he requests that we certify amount to a slightly condensed

version of the arguments we reject in this opinion. Therefore, certification is not

appropriate.

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IV

The district court did not abuse its discretion when it denied Mr. Reilly’s

post-judgment motions. Accordingly, we affirm.

AFFIRMED.

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