United States District Court, E.D. Louisiana
GUY BOUDREAUX, JR.
ROBERT C. TANNER, ET AL.
ORDER AND REASONS
the Court is Guy Boudreaux, Jr.'s
(“Petitioner”) “Motion Showing Objections
were Timely Filed and Request for Independent De Novo
Review.” Rec. Doc. 29. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 29)
is DISMISSED. The record and law, even after
considering Petitioner's untimely objections (Rec. Doc.
28), clearly support the Magistrate Judge's
recommendations. Petitioner fails to show that he is entitled
to statutory tolling, equitable tolling, or the McQuiggin
v. Perkins, 133 S.Ct. 1924 (2013) actual innocence
exception. This § 2254 request for habeas corpus relief
remains untimely for reasons assigned by this opinion, our
prior opinion, and by the Magistrate Judge. See Rec.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
state court, Petitioner was convicted of committing
forty-seven counts of possession of pornography involving
juveniles and four counts of attempted possession of
pornography involving juveniles. Rec. Doc. 24 at 1 (citing
State Rec. Vols. 4, trial transcript at 857-59; 1, minute
entry dated November 11, 2010; 1, jury verdict form). On
January 31, 2011, he was sentenced to ten years'
imprisonment on each of the possession charges and five
years' imprisonment on each of the attempted possession
charges, to run concurrently. Id. at 1-2 (citing
State Rec. Vols. 4, January 31, 2011 transcript; 1, January
31, 2011 minute entry). The convictions and sentences were
affirmed by the Louisiana First Circuit Court of Appeal and
the Louisiana Supreme Court subsequently denied
Petitioner's writ application. Id. at 2 (citing
State v. Boudreaux, 11-833 (La.App. 1 Cir. 11/9/11);
2011 WL 5394577; State ex rel. Boudreaux v. State,
11-2805 (La. 8/22/12); 97 So.3d 352 (memorandum opinion)).
Petitioner filed an application for post-conviction relief in
state court; both the district court and the Louisiana First
Circuit denied relief. Rec. Doc. 24 at 2 (citing State Rec.
Vols. 6, May 29, 2015 Order; 7). The Louisiana Supreme Court
also refused to consider Petitioner's untimely writ
application. Id. (citing State ex rel. Boudreaux
v. State, 15-2168 (La. 3/14/16); 186 So.3d 645
March 11, 2016, Petitioner filed an application in this Court
seeking federal habeas corpus relief. Rec. Doc. 1. After the
state filed an opposition memorandum (Rec. Doc. 21) and
Petitioner filed a reply (Rec. Doc. 22), Magistrate Judge
Knowles issued a report and recommendation, recommending that
the federal application be dismissed with prejudice as
untimely (Rec. Doc. 24). The report and recommendation was
filed into the record on October 6, 2016. Rec. Doc. 24. Any
objections to the report were due within fourteen days, by
October 20, 2016. Id.
October 27, 2016, “having considered the petition, the
record, the applicable law[, ] and the Report and
Recommendation . . . and the failure of any party to file any
objection to the . . . Report and Recommendation, ” we
issued an order adopting the report and dismissing
Petitioner's application with prejudice. Rec. Doc. 25.
Eight days later, on November 4, 2016, Petitioner's
objections to the report and recommendation were filed into
the record. See Rec. Doc. 28.
instant motion, filed on December 12, 2016, Petitioner moves
for reconsideration under Federal Rule of Civil Procedure
60(b). Rec. Doc. 29. He claims that his objections were
timely filed and should have been considered by the Court.
Id. at 1. Specifically, he argues that he received a
copy of the report and recommendation on October 14, 2016 and
he submitted his objections to prison officials thirteen days
later, on October 27, 2016. Id.
LAW AND ANALYSIS
Federal Rules of Civil Procedure do not specifically
recognize a motion for reconsideration.” Jenkins v.
Bristol-Myers Squibb, No. 14-2499, 2016 WL 5874984, at
*5 (E.D. La. Oct. 7, 2016) (citing St. Paul Mercury Ins.
Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.
1997)). Nonetheless, “[a] motion asking that the court
reconsider a prior ruling is evaluated either as a motion to
alter or amend a judgment under Federal Rule of Civil
Procedure 59(e) or as a motion for relief from a final
judgment, order[, ] or proceeding under Federal Rule of Civil
Procedure 60(b).” In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., No. 07-1873, 2011 WL 6130788, at *3
(E.D. La. Dec. 7, 2011) (internal quotation marks omitted).
Here, Petitioner moves under Rule 60(b), which provides that
a court, “[o]n motion and just terms, ” may
relieve a party “from a final judgment, order, or
proceeding” due to:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...