[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11014

Non-Argument Calendar

____________________

MARK W. BENOIT, 

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

Respondents-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:17-cv-02005-GKS-DCI

____________________

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2 Opinion of the Court 21-11014

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Mark Benoit, proceeding pro se, appeals the district court’s 

denial of his Rule 59(e) motion to alter or amend an order denying

his motion to amend his habeas corpus petition. On appeal, Mr. 

Benoit concedes that the substantive claim is unexhausted and untimely. He also does not argue that the district court erred when it 

denied his motion to amend. Instead, he asserts that the district 

court abused its discretion by failing to exercise equitable discretion 

to hear his constitutional claim—one he raised for the first time in 

his Rule 59(e) motion—because a manifest miscarriage of justice 

was apparent on the face of the record. Because Rule 59(e) cannot 

be used to assert arguments that could have been raised before the 

entry of judgment, we affirm.1 

I 

A Florida jury convicted Mr. Benoit of two counts of sexual 

battery of a child by a person in familial or custodial authority over 

that child, three counts of lewd or lascivious molestation, and one 

count of lewd or lascivious exhibition. The state court sentenced 

Mr. Benoit to twenty-five-year terms of imprisonment on all 

counts, with the sentence for one of the molestation counts—

1 We assume the parties’ familiarity with the facts and procedural history and 

set out only what is necessary to explain our decision. As to issues not discussed, we summarily affirm.

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21-11014 Opinion of the Court 3

Count Three—to run consecutive to the other sentences. Significantly, Count Three alleged that Mr. Benoit unlawfully engaged in 

sexual activity with a child, specifically by sexual penetration. 

When answering the special interrogatories to Count Three, however, the jury declined to find that sexual penetration had occurred. 

Instead, the jury found that sexual contact or “union” had occurred. 

After conviction and sentencing, Mr. Benoit filed a direct appeal, motions for post-conviction relief, and a state habeas corpus

petition raising a myriad of claims and theories, none of which are 

relevant to the instant appeal. All were unsuccessful. 

In November of 2017, Mr. Benoit filed a 28 U.S.C. § 2254 

petition, raising three grounds for relief. As relevant here, in 

Ground One, Mr. Benoit argued that he was convicted of crimes 

not contained in the Information because the trial court’s instructions to the jury allowed it to convict him of offenses that occurred 

prior to April 29, 2009, whereas the Information charged offenses 

occurring only between April 29, 2009 and June 29, 2009. The state 

responded to Mr. Benoit’s petition, urging the district court to dismiss it or deny it with prejudice. 

Mr. Benoit replied, requesting that the district court grant 

him leave to amend Ground One of his habeas petition. In particular, Mr. Benoit sought to amend his petition to argue—for the first 

time—that he was convicted of a crime not charged in the Information because the jury did not find that the state established that

“penetration” had occurred with respect to the events underlying 

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4 Opinion of the Court 21-11014

the charge for Count Three. Rather, the jury only found “union,” 

which does not suffice to support the charge of conviction. The 

state responded, arguing, among other things, that Mr. Benoit’s 

new legal theory was both unexhausted and untimely. 

Mr. Benoit replied that his proposed amendment related 

back to Ground One because his claim was the same—that he was 

convicted of a charge not contained in the Information. He said

that he sought an amendment only to clarify the issues related to 

that claim and to cure any pleading defects. 

The district court denied Mr. Benoit’s petition and his motion to amend. Regarding the motion to amend, the district court 

found that: (1) Mr. Benoit had until December 7, 2017, to file a 

federal habeas corpus petition; (2) his motion to amend, filed on 

August 9, 2018, was untimely; (3) his proposed amendment did not 

relate back to Ground One of his habeas petition; and (4) he had 

never raised his new claim in state court. 

Mr. Benoit then filed a Rule 59(e) motion requesting that the 

district court reconsider the portion of its order denying his request 

to amend Ground One of his habeas petition. In an attached memorandum, Mr. Benoit raised yet another novel claim, asserting for 

the first time that he was “actually (factually) innocent” of the 

crime for which he was convicted in Count Three of the Information, which constituted a miscarriage of justice. As such, he 

could overcome the procedural bars that applied to his motion for 

leave to amend. 

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The district court concluded that the record supported 

Mr. Benoit’s new theory that the jury found him guilty of union 

(not penetration) and that sexual battery could not be established 

by a digital union under Florida law. Nevertheless, the district 

court denied Mr. Benoit’s motion, finding that Mr. Benoit was raising arguments that could have been presented before the entry of 

judgment and could not use Rule 59(e) to relitigate the merits of 

his motion to amend. The district court explained that Mr. Benoit 

had never argued (1) that he was legally innocent of Count Three 

in state court; and (2) that he was actually innocent of Count Three 

in state or federal court prior to the filing of his motion for reconsideration. Mr. Benoit timely appealed. 

II 

We review the denial of a Rule 59(e) motion for abuse of 

discretion. See Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 

2006); Mincey v. Head, 205 F.3d 1106, 1137 (11th Cir. 2000). When 

reviewing for an abuse of discretion, we generally affirm unless the 

district court applied an incorrect legal standard, made findings of 

fact that were clearly erroneous, or committed a clear error of judgment. See Mincey, 206 F.3d at 1137. 

A 

On appeal, Mr. Benoit concedes that his factual/actual innocence argument was unexhausted and untimely. And he does not 

argue that the district court erred when it ruled that the proposed 

amendment to his habeas petition—claiming that he was convicted 

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6 Opinion of the Court 21-11014

of a charge not included in the indictment because the jury found 

union and not sexual penetration—did not relate back to Ground 

One of the petition. As a result, that argument is abandoned. See 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 

2014) (holding that an appellant is “deemed to have abandoned” an 

argument when he “fails to challenge properly on appeal one of the 

grounds on which the district court based its judgment”). All that 

remains, then, is Mr. Benoit’s argument that the district court 

abused its discretion when it denied his Rule 59(e) motion by (1) 

improperly applying the standard for evaluating Rule 59(e) motions; and (2) failing to recognize it had equitable discretion to hear 

his procedurally defaulted actual/factual innocence claim because 

a manifest miscarriage of justice was apparent on the face of the 

record. 

B 

Rule 59(e) allows a litigant to file a motion to alter or amend 

within 28 days from the entry of the judgment. See Banister v. Davis, 140 S.Ct. 1698, 1703 (2020). The grounds for granting a Rule 

59(e) motion are newly discovered evidence or manifest errors of 

law or fact. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)

(quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)) (internal quotation marks omitted). A Rule 59(e) motion cannot be used 

to relitigate old matters, raise new arguments, or present evidence 

that could have been raised prior to the entry of judgment. See 

Arthur, 500 F.3d at 1343 (quoting Michael Linet, Inc. v. Village of 

Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). 

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21-11014 Opinion of the Court 7

In Arthur, a death row inmate filed a Rule 59(e) motion to 

alter or amend a judgment dismissing his § 1983 complaint. See

500 F.3d at 1340. In that motion, the inmate argued that the district 

court should amend its dismissal order because a new affidavit 

from a witness provided evidence of his innocence. See id. at 1342. 

The district court discredited that affidavit because it was unsworn 

and incredible and denied the inmate’s motion. See id. On appeal, 

we held that the inmate could not show that the district court 

abused its discretion, not only because the affidavit was properly 

discredited, but also because it could not be considered “newly discovered” evidence. See id. at 1343 (holding the affidavit “could 

have been discovered during the five years after [the witness] had 

repudiated his first affidavit, and filed with the complaint.”). In 

other words, we ruled that the district court properly denied the 

Rule 59(e) motion because the inmate did not point to any newly 

discovered evidence or any manifest errors of law or fact. See id.

Here, Mr. Benoit attempted to raise a new legal argument

in his Rule 59(e) motion—that he is “factually (actually) innocent” 

of Count Three—after the district court had already denied his motion to amend his habeas petition with a separate claim as untimely 

and procedurally barred. His new claim of factual/actual innocence was not based on the discovery of any new evidence. As Mr. 

Benoit points out himself, the facts underpinning his new factual/actual innocence claim were already in the record when he 

filed his direct appeal, his state habeas petition, and his state postconviction motion. Nor does Mr. Benoit claim that the district 

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8 Opinion of the Court 21-11014

court’s decision to deny his motion to alter or amend involved 

manifest errors of law or fact. 

Instead, Mr. Benoit argues that the district court should have 

allowed him to use a Rule 59(e) motion for the exact aim we have 

sought to restrain: to raise new arguments or theories that could 

have been presented prior to the entry of judgment. See Arthur, 

500 F.3d at 1343. It seems, in fact, that Mr. Benoit sought only to 

invoke his actual/factual innocence theory once the district court 

had already rejected his motion to amend, precisely (or at least in 

part) because he had failed to argue that he was actually innocent 

of his conviction for Count Three. 

Mr. Benoit has failed to meaningfully explain why he never

raised this factual/actual innocence theory at any junction prior to 

his motion for reconsideration. Rule 59(e) is not a vehicle through 

which litigants may take a proverbial second bite of the apple. That 

is particularly so where, as here, the “evidence” relied upon is not 

newly discovered. See id. See also Fults v. GDCP Warden, 764 

F.3d 1311, 1318 (11th Cir. 2014) (holding that petitioner’s fundamental miscarriage of justice claim, raised for the first time on a 

motion for reconsideration, could not cure procedural defects). As

such, the district court did not abuse its discretion when it denied 

Mr. Benoit’s Rule 59(e) motion. 

 III 

The district court’s order is AFFIRMED. 

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