[ DO NOT PUBLISH] 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

_______ _____________ USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 1 of 82 Opinion of the Court 21

- 11014

Before W ILSON , J ORDAN , and N EWSOM , 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 b y 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 as sert 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 th at 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 andset out only what is necessary to explain our decision. As to issues not discussed, we summarily affirm. USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 2 of 821

- 11014 Opinion of the Court 3

Count Three

— t o 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 de clined 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, motion s for post

- conviction relief, and a state habeas corpus p etition raising a myriad of claims and theories
, no ne 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 O ne , Mr. Benoit argued that he was convicted of crimesnot 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 Gro und 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 USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 3 of 84 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
, a rguing , 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 I nformation. He said

t hat 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 h is new claim in state court.

Mr. Benoit then filed a Rule 59(e) motion request ing that the district court reconsider the portion of its order denying his requestto amend Ground One of his habeas petition. In an attached memorandum, Mr. Benoit raised ye t another novel claim, asserting for the first time that he was “ actually (factually) innocent ” of thecrime for which he was convicted in Count Three of the Information, which constitute d a miscarriage of justice. As such, he could overcome the procedura l bars that applied to his motion for leave to amend. USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 4 of 821

- 11014 Opinion of the Court 5

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 u nion under Florida law. Nevertheless, the districtcourt 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 mot ion 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 Threein 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 argumen t 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

— claim ing that he was convicted USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 5 of 86 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 cou rt abused its discretion when it den ied 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 cl aim 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 erro rs of law or fact. See Arthu r

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 argument s, 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) )

. USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 6 of 821

- 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 evide nce of his innocence. See i d

. at 1342. The district court discredited that affidavit because it was unsworn and incredible and denied the inmate ’s motion

. See i d

. On appeal, we held that the inmate could not show that the district court abused its disc retion , not only because the affidavit was properly discredited, but also because it could not be considered “newly discovered” evidence. See i d

. at 1343 (holding the affidavit “could have been discovered during the five years after [the witness] had repu diated 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. S ee i d.
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 post

conviction motion. Nor does Mr. Benoit claim that the district USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 7 of 88 Opinion of the Court 21

- 11014 court’s decision to deny his motion to alter or amend involved manifest errors of law or f act. 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. Se e Arthur
, 500 F.3d at 134 3. 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 raise d this factual/actual innocence theory at any junction prior to his motion for reconsideration. Rule 59(e) is not a vehicle throu gh which litigants may take a proverbial second bite of the apple

. That is p articularly 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) moti on.
III
The district court’s order is AFFIRMED. USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 8 of 8