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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17527
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-23077-WJZ
SEAN P. REILLY,
Plaintiff - Appellant,
versus
GUELSY M. HERRERA,
individual capacity,
ERIC ABRAHAMSEN,
individual capacity,
JENNIFER CHRISTINE DAVIS,
JIM H. DAVIS,
CARMEN I. GONZALEZ, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 3, 2018)
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Before MARCUS, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Sean P. Reilly, proceeding pro se, appeals from the district court’s denial of
three post-judgment motions—a Rule 60(b) motion, a Rule 59(e) motion, and a
motion for reconsideration—in his 42 U.S.C. § 1983 action, alleging, in part, that
the defendants violated his Fourth and Fourteenth Amendment rights by conspiring
to unlawfully seize him and send him to jail for a supervised release violation.
Because Mr. Reilly’s post-judgment motions essentially challenge our ruling in his
previous appeal, his claim is barred by the law-of-the-case doctrine. Accordingly,
we affirm.
I
Mr. Reilly originally filed his civil rights complaint in 2013. The district
court dismissed the claim sua sponte, ruling (as relevant here) that the favorable-
termination requirement of Heck v. Humphrey,
512 U.S. 477, 487 (1994), barred
the complaint because it challenged the revocation of Mr. Reilly’s supervised
release. Mr. Reilly appealed the dismissal, arguing that a concurring opinion in
Spencer v. Kemna,
523 U.S. 1, 18–21 (1998) (Souter, J., concurring), provides an
exception to Heck that allows him to challenge his supervised release revocation
under § 1983 because he is no longer in custody pursuant to the challenged
conviction. We affirmed the dismissal of his complaint, concluding that Mr.
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Reilly’s claim falls squarely within the purview of Heck. See Reilly v. Herrera,
622 F. App’x 832, 834–35 (11th Cir. 2015) (“Reilly I”).
Mr. Reilly filed a petition for rehearing en banc, arguing that the panel erred
in finding that he did nothing to challenge his supervised release revocation while
he was in custody. He asserted—for the first time—that he had appealed his
revocation in state court. Mr. Reilly also claimed that the panel’s decision
conflicted with the “authoritative decisions of other United States Courts of
Appeal” that have addressed Heck’s favorable-termination bar. We denied his
petition in September of 2015.
In 2016, Mr. Reilly filed the first two motions at issue in the present
appeal—a Rule 60(b) motion in May and a self-styled Rule 59(e) motion in July—
challenging our rulings in Reilly I. Mr. Reilly argued that relief under Rule 60(b)
was appropriate because he could show sufficiently extraordinary circumstances to
justify relief. He further asserted that we erred in declining to apply Justice
Souter’s proposed Heck exception (as set out in his Spencer concurrence) to his
claim because he had appealed his supervised release revocation in state court and
had sought state post-conviction relief—the same arguments he raised in
petitioning for rehearing en banc. Mr. Reilly also argued that our decision in
Reilly I created a “de facto exhaustion requirement” for § 1983 plaintiffs with no
clear standard or guidance for how the requirement should be applied.
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The district court denied Mr. Reilly’s motions because they were untimely
and did not state a cognizable basis upon which relief could be granted from our
rulings. Mr. Reilly then moved for a certificate of appealability, which the district
court construed as a notice of appeal. He also moved for reconsideration of the
denial of his motions – the third motion at issue in this appeal. The district court
denied his motion for reconsideration because the notice of appeal divested it of
jurisdiction over matters involved on appeal. Thereafter, Mr. Reilly filed a formal
notice of appeal.
On appeal, Mr. Reilly reasserts the arguments he raised in Reilly I and in his
petition for rehearing en banc. He also argues that his post-judgment motions were
not untimely because they were filed within a reasonable time after the Supreme
Court denied his petition for certiorari. He further contends that the district court
abused its discretion in denying the post-judgment motions because he established
that we relied on erroneous facts when we decided Reilly I. Finally, he argues that
the district court erred when it failed to consider his motion for reconsideration
because it misconstrued his application for a certificate of appealability as a notice
of appeal.
In addition, Mr. Reilly has moved for us to certify a question of law to the
United States Supreme Court pursuant to 28 U.S.C. § 1254(2). He essentially
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requests that we “certify” a condensed version of the arguments he raises on appeal
directly to the Supreme Court.
II
We review the denial of post-judgment motions under Rules 60(b) and 59(e)
for an abuse of discretion. See Bender v. Mazda Motor Corp.,
657 F.3d 1200,
1202 (11th Cir. 2011); Lamonica v. Safe Hurricane Shutters, Inc.,
711 F.3d 1299,
1317 (11th Cir. 2013). We likewise review a district court’s ruling on a motion for
reconsideration for abuse of discretion. See Richardson v. Johnson,
598 F.3d 734,
740 (11th Cir. 2010). “A district court abuses its discretion if it applies an
incorrect legal standard, follows improper procedures in making the determination,
or makes findings of fact that are clearly erroneous.” Chicago Tribune Co. v.
Bridgestone/Firestone, Inc.,
263 F.3d 1304, 1309 (11th Cir. 2001). As a general
matter, we may affirm on any ground supported by the record. See LeCroy v.
United States,
739 F.3d 1297, 1312 (11th Cir. 2014).
III
To the extent that Mr. Reilly seeks to challenge our decision in Reilly I, his
contention is barred by the law-of-the-case doctrine. See Mega Life & Health Ins.
Co., 585 F.3d at 1405. Under this doctrine, findings of fact and conclusions of
law by an appellate court generally are binding in all later proceedings in the same
case in the trial court or on a later appeal. See Mega Life & Health Ins. Co. v.
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Pieniozek,
585 F.3d 1399, 1405 (11th Cir. 2009). The doctrine, however, does not
bar reconsideration of an issue if (1) a later trial produces substantially different
evidence; (2) controlling authority has since made a contrary decision of law
applicable to that issue; or (3) the prior decision was clearly erroneous and would
work a manifest injustice.
Id.
Mr. Reilly does not allege that a later trial produced substantially different
evidence or that any new controlling authority applies to his claim. As such,
neither exception to the doctrine applies. Instead, the thrust of Mr. Reilly’s current
argument is that he would have been entitled to relief under Spencer but for our
erroneous finding that he failed to pursue state court remedies.
Under § 1983, a person acting under color of state law may be held liable for
causing the deprivation of “any rights, privileges, or immunities secured by the
Constitution.” 42 U.S.C. § 1983. A § 1983 suit for damages must be dismissed,
however, if “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence.”
Heck, 512 U.S. at 487. In a concurring
opinion in Spencer, Justice Souter discussed the implications of Heck and opined
that a “former prisoner, no longer ‘in custody’” should be allowed to “bring a §
1983 claim establishing the unconstitutionality of a conviction or confinement
without being bound to satisfy a favorable-termination requirement that it would be
impossible as a matter of law for him to satisfy.”
Spencer, 523 U.S. at 21 (Souter,
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J., concurring). To date, however, neither the Supreme Court nor this Court has
applied the exception described in Justice Souter’s concurrence in a published
opinion.
Justice Souter’s concurring opinion in Spencer did not overturn Heck’s bar
on § 1983 actions challenging the validity of the claimant’s conviction or sentence.
See
Heck, 512 U.S. at 487. Therefore, even if we erred in finding that Mr. Reilly
had not pursued his state court remedies, our ruling was not clearly erroneous and
did not result in manifest injustice because Heck is still controlling law. See Mega
Life & Health Ins.
Co., 585 F.3d at 1405. Mr. Reilly, therefore, does not satisfy
the third exception to the law-of-the-case doctrine.
In addition, Mr. Reilly’s argument that he diligently pursued and exhausted
state court remedies challenging his revocation of supervised release fails because
he did not assert it in the initial brief in Reilly I. In fact, he did not raise this
argument until he filed a petition for rehearing en banc in Reilly I. We have
repeatedly declined to consider issues raised for the first time in a petition for
rehearing. See, e.g., United States v. Levy,
416 F.3d 1273, 1275 (11th Cir. 2005);
United States v. Martinez,
96 F.3d 473, 475 (11th Cir. 1996); Scott v. Singletary,
38 F.3d 1547, 1552 (11th Cir. 1994); Dunkins v. Thigpen,
854 F.2d 394, 399 (11th
Cir. 1988); Holley v. Seminole County Sch. Dist.,
763 F.2d 399, 400–01 (11th Cir.
1985). Mr. Reilly cannot now seek to press an issue that he failed to properly
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present in his first appeal, and which we have already declined to hear in his
petition for rehearing en banc.
Taking each of Mr. Reilly’s remaining arguments in turn, the district court
did not abuse its discretion when it concluded that the post-judgment motions were
untimely. Rule 59(e) allows a party to move to alter or amend judgment in a civil
case no later than 28 days after entry of the judgment. See Fed. R. Civ. P. 59(e).
“A court must not extend the time to act under Rule [59(e)].” Fed. R. Civ. P.
6(b)(2). See also Green v. DEA,
606 F.3d 1296, 1300 (11th Cir. 2010) (finding
that Rule 6(b)(2) prohibits extending the time to file a Rule 59(e) motion, even
where the district court erroneously grants a defendant an extension of time to file
a motion for reconsideration). However, when a Rule 59(e) motion is filed more
than 28 days after the entry of judgment and the grounds stated would be a basis
for Rule 60(b) relief, the district court may treat it as a motion for relief from
judgment under Rule 60(b). See Nisson v. Lundy,
975 F.2d 802, 806 (11th Cir.
1992).
Under Rule 60(b), a court may relieve a party of a final order or judgment
for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that could not previously have been discovered with reasonable diligence;
(3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void
judgment; (5) a judgment that has been satisfied, released, or discharged, that is
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based on an earlier judgment that has been reversed or vacated, or that it would no
longer be equitable to apply prospectively; or (6) any other reason that justifies
relief. See Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made
“within a reasonable time—and for reasons (1), (2), and (3) no more than a year
after the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ.
P. 60(c).
Mr. Reilly’s post-judgment motions were filed more than two years after the
district court dismissed his § 1983 action—well beyond the 28-day limitation
imposed under Rule 59(e) and the one-year time limit under Rule 60(b)(1), (2), and
(3). Mr. Reilly also specifically invoked Rule 60(b)(6), a subsection which
provides that the court may relieve a party from a final order based on “any other
reason that justifies relief.” Fed. R. Civ. P. 60(6)(6). Although this catch-all
provision has no strict time limitation, it is intended “only for extraordinary
circumstances.” Frederick v. Kirby Tankships, Inc.,
205 F.3d 1277, 1288 (11th
Cir. 2000). Thus, “[Mr. Reilly] must do more than show that a grant of [his]
motion might have been warranted. [He] must demonstrate a justification for relief
so compelling that the district court was required to grant [his] motion.” Rice v.
Ford Motor Co.,
88 F.3d 914, 919 (11th Cir. 1996).
Even assuming that Mr. Reilly filed his Rule 60(b)(6) motion within a
“reasonable time,” no extraordinary circumstances cause us to conclude that the
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district court abused its discretion. In addition, Mr. Reilly’s post-judgment
motions challenged our factual findings and legal conclusions in Reilly I—but
neither Rule 60(b) nor Rule 59(e) grants a district court the authority to alter,
amend, or grant relief from an appellate court’s rulings. The district court’s denials
of Mr. Reilly’s post-judgment motions were not an abuse of discretion because it
lacked the authority to grant Mr. Reilly the relief he sought. See Chicago Tribune
Co. v. Bridgestone/Firestone, Inc.,
263 F.3d 1304, 1309 (11th Cir. 2001).
Likewise, the district court did not err when it interpreted Mr. Reilly’s
mislabeled “application for a certificate of appealability” as a notice of appeal
because the motion, in effect, was cognizable as a formal notice of his intent to
request review of the district court’s order. “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003)
(quotation omitted). Here, Mr. Reilly’s application for a certificate of appealability
clearly expressed an intent to “appeal issues in the . . . [district court’s] denial of
the Rule 60(b)(6) and Rule 59(e) motions.” D.E. 51 at 1. Therefore, the district
court properly construed the application as a notice of appealability and
appropriately determined that it lacked jurisdiction to consider Mr. Reilly’s
subsequent motion for reconsideration.
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Finally, as to Mr. Reilly’s request that we certify a question to the Supreme
Court of the United States, we decline to do so. Certification of questions pursuant
to 28 U.S.C.A. § 1254 rests in the discretion of the Courts of Appeal and cannot be
invoked by a party as a matter of right. See 28 U.S.C.A. § 1254. See also
Rutherford v. American Medical Ass’n,
379 F.2d 641, 644–45 (7th Cir. 1967)
(declining to certify plaintiffs’ questions where the disposition of the appeal left
plaintiffs with the right to seek review by petition to the Supreme Court for a writ
of certiorari). Moreover, “the Supreme Court has discouraged the use of this
certification procedure and has accepted certified questions only four times in the
last 60 years.” In re Hill,
777 F.3d 1214, 1225 (11th Cir. 2015). In fact, the
Supreme Court has admonished that the certification procedure is proper only in
“rare instances.” See
id. (citing to Wisniewski v. United States,
353 U.S. 901, 902
(1957)) (quotation omitted).
Although Mr. Reilly contends that his appeal raises questions of great public
importance, the issues he requests that we certify amount to a slightly condensed
version of the arguments we reject in this opinion. Therefore, certification is not
appropriate.
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IV
The district court did not abuse its discretion when it denied Mr. Reilly’s
post-judgment motions. Accordingly, we affirm.
AFFIRMED.
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