IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEROME A. WILLIAMS, :

Petitioner, :

v. : CIVIL ACTION NO. 07-00123-KD-B

RALPH HOOKS, :

Respondent. :

REPORT AND RECOMMENDATION

This action is before the Court on Petitioner Jerome A.

Williams’ Motion for a Certificate of Appealability (“COA”). (Doc.

29). On March 30, 2010, the Court entered an Order adopting the

undersigned’s Report and Recommendation (Doc. 22), which found that

Petitioner’s habeas petition should be denied, and that he is not

entitled to a COA. A Judgment dismissing the petition was entered

on March 30, 2010. (Doc. 27). Since the Court has already

determined that Petitioner is not entitled to a COA, his instant

motion is being treated as a motion for reconsideration of the

denial of a COA. 

The Eleventh Circuit has described a motion for

reconsideration as falling within the ambit of either Rule 59(e)

(motion to alter or amend a judgment) or Rule 60(b) (motion for

relief from judgment). Region 8 Forest Serv. Timber Purchasers

Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). In either

situation, relief granted from such a motion is within "the sound

discretion of the district judge and will not be overturned on

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appeal absent an abuse of discretion." Id. The courts have

delineated three major grounds justifying reconsideration: (1) an

intervening change in controlling law; (2) the availability of new

evidence; and (3) the need to correct clear error or prevent

manifest injustice. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59

(N.D. Ga. 2003); Sussman v. Salem, Saxon & Nielsen, P.A., 153

F.R.D. 689, 694 (M.D. Fla. 1994). As observed by the Court in Dyas

v. City of Fairhope, 2009 U.S. Dist. LEXIS 119495, 2009 WL 5062367

at *3 (S.D. Ala. 2009), “[m]otions to reconsider serve a valuable

but limited function. They do not exist to permit losing parties to

prop up arguments previously made or to inject new ones, nor to

provide evidence or authority previously omitted. They do not, in

short, serve to relieve a party of the consequences of its

original, limited presentation.”

In his COA, Petitioner argues, as he did in his habeas

petition, that he is entitled to relief under § 2254 because the

trial court violated his constitutional right to waive counsel and

represent himself during the suppression hearing. However, as

discussed in the Report and Recommendation, by the time of

Petitioner’s request to represent himself, the suppression hearing

had commenced and the state’s DNA expert had undergone direct

examination and was about to undergo cross examination by defense

counsel. Clearly, permitting Petitioner to discharge his counsel

and to proceed pro se once the suppression hearing had commenced

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could have caused a “potential disruption of proceedings already in

progress.” United States ex rel Maldonadeo v. Denno, 348 F.2d 12,

15 (2nd Cir. 1965). Moreover, the record reflects that Petitioner’s

subsequent request, made after the prosecution’s opening statement,

that he be permitted to represent himself at trial, was granted.

See (Doc. 11, Ex 1, Vol. 2, pp. 17-27 (R. 16-26)). 

Petitioner has proffered no facts that suggest that reasonable

jurists might question whether he was deprived of his right to

waive counsel and represent himself. Nor has he presented any basis

for the court to alter its denial of a COA. See Mays v. United

States Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)(A motion to

reconsider may not be used as a vehicle to inject new arguments

into the underlying motion, or to submit evidence previously

available but not properly presented on the underlying motion).

Accordingly, Petitioner’s request for reconsideration of the denial

of a COA is due to be denied. It is so recommended.

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 16th day of April, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will

bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736,

738 (11th Cir. 1988). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part,

that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by 28

U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to

Magistrate Judge’s Recommendation" within ten days1

 after being

served with a copy of the recommendation, unless a different time

is established by order. The statement of objection shall specify

those portions of the recommendation to which objection is made and

the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief

setting forth the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the

original brief submitted to the magistrate judge, although a copy

of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure

to submit a brief in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

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3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed. R. Civ. P. 72(b), the

magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to

object to this recommendation, but unable to pay the fee for a

transcript, is advised that a judicial determination that

transcription is necessary is required before the United States

will pay the cost of the transcript.

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