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Boudreaux v. Tanner

United States District Court, E.D. Louisiana

January 12, 2017


         SECTION “B” (3)


         Before 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. Docs. 24-25.


         In 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)).

         Thereafter, 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 (memorandum opinion)).

         On 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.

         On 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.

         In the 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.


         “The 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 ...

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