IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICK JOSEPH CHAREST,

AIS 182262

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Petitioner,

vs. Civil Action No. 10-0067-CG-C

BILLY MITCHUM,

Respondent.

AMENDED ORDER

This matter is before the court on the State’s objection (Doc. 72) to the 

magistrate judge’s report and recommendation (Doc. 63). Also before the 

court is the pro se reply brief (Doc. 77) filed by the petitioner, Patrick Joseph 

Charest (“Charest”), as well as his pro se “emergency motion” (Doc. 78) and 

his affidavit for a motion for permission to appeal in forma pauperis (Doc. 

80).

The magistrate judge summarized the factual background of the case 

at length in his report and recommendation and the court will not duplicate 

those efforts here. See Doc. 63 at 3-33. The court previously adopted the 

magistrate judge’s report and recommendation on April 10, 2013 (Doc. 70),

and issued a judgment dismissing Charest’s request for habeas corpus relief 

as an unconscionable abuse of the writ and as time-barred (Doc. 71). Two 

days later, the State filed an objection to the report and recommendation.

(Doc. 72). In order to consider the State’s objection, the court vacated its 

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order and judgment on April 15. (Doc. 73).

Having now closely considered the State’s objection to the report and 

recommendation, the finds that it is well taken and declines to adopt that 

portion of the Report and Recommendation that concludes that the state 

court’s August 2005 Order which modified Charest’s sentence constituted a 

“new judgment”, as set forth below. The court also finds that Charest’s 

multiple motions before the court are due to be DENIED, or are MOOT, as 

set forth below.

I. THE STATE’S OBJECTION (DOC. 72)

At issue is the Baldwin County Circuit Court’s August 12, 2005, Order 

(the “August 2005 Order”) which modified Charest’s two consecutive life 

terms so that they ran concurrently. Doc. 59-1. The magistrate judge 

concluded that this was a “new judgment” within the scope of the United 

States Supreme Court’s holding in Magwood v. Patterson, 130 S.Ct. 2788 

(2010), and consequently, that Charest could attack his unaltered, underlying 

convictions pursuant to Magwood and Campbell v. Secretary for the Dept. of 

Corrections, 447 Fed. Appx. 25, 26-27 (11th Cir. Oct. 13, 2011). See Doc. 63 

at 36-38.

The State contends that the magistrate judge was incorrect, and 

argues that, pursuant to Alabama Rule of Criminal Procedure 26.12(c)1, the 

 1 Ala.R.Crim.P. 26.12(c) states that “[t]he court may at any time by a nunc 

pro tunc order provide that previously imposed consecutive sentences run 

concurrently.”

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Circuit Court’s modification of Charest’s sentences was a “purely 

discretionary judicial change in the manner in which Charest’s sentences 

were to be executed and served.” Id. at 4.

In the report and recommendation, the magistrate judge relied to a 

large extent upon the Eleventh Circuit’s holdings in Murphy v. United 

States, 634 F.3d 1303, 1311 (11th Cir. 2011), and Ferreira v. Secretary, Dept. 

of Corrections, 494 F.3d 1286, 1292–93 (11th Cir. 2007). In Murphy, the 

Eleventh Circuit considered whether granting a sentence reduction to a 

federal defendant pursuant to Federal Rule of Criminal Procedure 35(b)

constituted a resentencing that re-started the AEDPA “time clock,”2 thus 

allowing the defendant to collaterally attack his original conviction and 

sentence. Murphy, 634 F.3d at 1306. The Eleventh Circuit defined the term 

“judgment” as “ the underlying conviction and [the] most recent sentence that 

authorizes the petitioner's current detention.” Id. at 1311 (quotation 

omitted)(emphasis in original). The court stated further that “we reasoned in 

Ferreira[] that ... a judgment is defined as both the conviction and the 

sentence ...[and therefore] when a defendant is resentenced, the defendant 

becomes confined under a new judgment[.]”. Id. at 1311.

The magistrate judge pointed to this language in his report and

recommendation when he found that the August 2005 Order was the “most 

recent” sentence authorizing Charest’s detention and concluding that it was a 

 2 The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 

See Pub.L 104-132, § 104, 110 Stat. 1214, 1218-1219.

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“new judgment.” Doc. 63 at 36-38. However, Murphy and Ferreira are not 

support this conclusion as well as the report and recommendation suggest.

For one thing, Ferreira is distinguishable from the instant case because it 

dealt with a defendant who was resentenced after his original sentence was 

declared invalid. Murphy, 634 F.3d at 1313. In this case, there was no such 

invalidation of Charest’s original sentence; rather, it was modified pursuant 

to an agreement that Charest struck with the State. Doc. 63 at 23.

Murphy is likewise a poor fit for a finding of a new judgment because 

in that case, the Eleventh Circuit ultimately ruled that the reduction of the 

defendant’s sentence pursuant to Fed.R.Crim.P. 35(b) did not comprise a 

genuine resentencing, nor give rise to a new judgment. Murphy, 634 F.3d at 

1313. The Eleventh Circuit instead held that a Rule 35(b) motion is merely a 

“plea for leniency, a matter of executive and judicial grace.” Id. (quotation 

marks omitted). The discussion of Rule 35(b) in Murphy is actually a

reasonable counterpart to the State’s invocation of Ala.R.Crim.P. 26.12(c), 

which allows the trial court to modify consecutive sentences and make them 

run concurrently. See Ala.R.Crim.P. 26.12(c). Although the state rule 

provides greater discretion to Alabama courts than the federal rule does to 

federal courts,3 both rules are procedural avenues by which a court may

 3 For example, Fed.R.Crim.P. 35(b) only authorizes a reduction in a 

defendant’s sentence when two conditions are met: (1) the defendant must 

render substantial assistance to the government in the investigation or 

prosecution of another person; and (2) the government must decide to file a 

Rule 35(b) motion. Murphy at 1313.

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amend a defendant’s sentence.

Accordingly, the court DECLINES TO ADOPT that portion of the

magistrate judge’s report and recommendation that discusses and concludes

that the August 2005 Order was a “new judgment.” Instead, the court finds

that where, as here, the original sentence has not been declared invalid, no 

genuine resentencing has taken place. It logically follows that, because the 

August 2005 Order is not a new or intervening judgment, then Charest is not 

entitled to challenge his unaltered, underlying convictions for rape because

the Court of Appeals has denied permission to file a second or successive 

petition. (See Doc. 9, Exh H, at 14). Campbell v. Secretary for the Dept. of 

Corrections, 447 Fed. Appx. 25, 26-27 (11th Cir. Oct. 13, 2011) (“Magwood

permits a petitioner who received an intervening judgment to attack the 

unaltered prior conviction.”). 

In addition, the court does adopt , as an alternate holding, (should the 

Court of Appeals find that the resentencing constituted an intervening 

judgment), the discussion and conclusions in the Report and 

Recommendation finding that the writ is due to be denied because Charest 

has abused of the writ and dismissed as time-barred. Accordingly, Charest’s 

request for habeas corpus relief is hereby DENIED.

II. CHAREST’S MOTIONS AND VARIOUS FILINGS

On April 22, 2013, Charest filed a Rule 59(e) motion for 

reconsideration (Doc. 75) requesting that the court alter, vacate, or amend its 

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judgment of April 10. However, as discussed above, the court had previously 

vacated the order one week earlier, on April 15 (Doc. 73). Therefore, 

Charest’s motion is DENIED as MOOT, as is his motion to stay appeal 

pending adjudication of his Rule 59 motion (Doc. 76).

On April 24, 2013, Charest filed “cross-objections” – essentially a reply 

brief -- in response to the State’s objection to the magistrate judge’s report 

and recommendation. Doc. 77. As part of his “cross-objections,” Charest 

requested a hearing before the court regarding certain “factual disputes –

questions of law – mixed with federal law,” or, alternatively, requested that 

the court grant him certain “relief” that would allow him to return to Baldwin 

County for a Rule 32 hearing, or simply order a new trial. Doc. 77 at 32. In 

light of the court’s determination, supra, these requests are DENIED.

Charest also filed an emergency motion, in which he (1) argues that he had 

no prior knowledge of certain filings by the State and his own appellate 

counsel in the instant habeas appeal; (2) seeks copies of various docket filings

dating to December 2012 and January 2013; and (3) requests that the district 

court recuse itself. (Doc. 78). The request to recuse is based solely on this 

court’s earlier rulings in the instant case. As a general rule, a judge's rulings 

in a case are not valid grounds for recusal. Loranger v. Stierheim, 10 F.3d 

776, 780 (11th Cir. 1994). Petitioner cites no other grounds for recusal, and 

the request to recuse is therefore denied. Charest should request copies of 

documents directly from Mr. Helmsing for the period of time that Mr. 

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Helmsing served as Charest’s appellate counsel. If the Clerk has not already 

done so, it is hereby directed to send Charest copies of documents filed after 

Mr. Helmsing withdrew as appellate counsel. Charest’s emergency motion 

(Doc. 78) is otherwise DENIED.

DONE and ORDERED this 14th day of November, 2013.

/s/ Callie V.S. Granade

UNITED STATES DISTRICT JUDGE

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