United States District Court, S.D. Illinois
MEMORANDUM and ORDER
Herndon United States District Judge
before the Court is Jordan's motion for relief from
Judgment and Order pursuant to Federal Rules of Civil
procedure [sic] 60. (b), (2), (6) [sic] (Doc. 44). Based on
the following, the Court DENIES the motion.
2000, Valdez Jordan was convicted by a Madison County,
Illinois, jury of armed robbery and first-degree murder. He
was sentenced to concurrent prison terms of thirty and
thirty-five years. On December 1, 2016, Jordan filed a habeas
corpus petition pursuant to 28 U.S.C. § 2254 (Doc. 1).
He asserted the following grounds for habeas relief:
1) Prosecutorial misconduct consisting of (a) the police
elicited incriminating statements from Jordan in violation of
his right to counsel; (b) knowing use of false testimony
before the grand jury; (c) knowing use of false testimony at
trial; and (d) denial of due process and a fair trial by the
“totality of prosecutorial misconduct.”
2) Ineffective assistance of trial counsel in that counsel
(a) failed to file a motion to suppress statements obtained
in violation of Jordan's right to counsel; (b) failed to
file a motion to quash indictment; (c) failed to file a
motion in limine to exclude the testimony of Tamala Hamilton;
(d) failed to seek a continuance of trial to locate witness
Monique Kimple; and (e) denial of effective assistance by the
“totality of counsel's omissions and errors.”
23, 2017, the Court entered a Memorandum and Order dismissing
without prejudice his petition for failure to exhaust state
remedies (Doc. 24) and Judgment reflecting the same was
entered (Doc. 25). Thereafter, the Court denied Jordan's
motion for reconsideration on July 21, 2017 (Doc. 28). Jordan
then filed a notice of appeal on August 18, 2017 (Doc. 30).
On May 14, 2018, the Seventh Circuit Court of Appeals filed
its mandate dismissing Jordan's appeal for lack of
jurisdiction specifically finding:
Valdez Jordan has filed a notice of appeal from the dismissal
of his petition under 28 U.S.C. § 2254 and an
application for certificate of appealability. The district
court denied Jordan's request to excuse his failure to
exhaust state remedies and dismissed the petition without
prejudice. Such a dismissal is not a final, appealable order
under 28 U.S.C. § 1291. See Gacho v. Butler,
792 F.3d 732, 735-36 (7th Cir. 2015); Moore v. Mote,
368 F.3d 754, 755 (7th Cir. 2011).
Accordingly, we DISMISS the appeal for lack of jurisdiction.
All pending motions, including the motions to proceed in
forma pauperis and for appointment of counsel, are DENIED.
(Doc. 43-1). Still undeterred, Jordan filed the Rule 60
motion on May 23, 2018 arguing that newly discovered evidence
has developed since the Court dismissed the case (Doc. 44).
Seventh Circuit has held that a motion challenging the merits
of a district court order will automatically be considered as
having been filed pursuant to either Rule 59(e) or Rule
60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994). Different time-tables govern these motions.
Different standards also apply. Rule 59(e) permits a court to
amend a judgment only if the movant demonstrates a manifest
error of law or fact or presents newly discovered evidence
that was not previously available. See, e.g., Sigsworth
v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007).
Rule 60(b) permits a court to relieve a party from an order
or judgment based on such grounds as mistake, surprise or
excusable neglect by the movant; fraud or misconduct by the
opposing party; a judgment that is void or has been
discharged; or newly discovered evidence that could not have
been discovered within the 28-day deadline for filing a Rule
59(b) motion. However, the reasons offered by a movant for
setting aside a judgment under Rule 60(b) must be something
that could not have been employed to obtain a reversal by
direct appeal. See, e.g., Bell v. Eastman Kodak Co.,
214 F.3d 798, 801 (7th Cir. 2000).
both Rules 59(e) and 60(b) have similar goals of erasing the
finality of a judgment and permitting further proceedings,
Rule 59(e) generally requires a lower threshold of proof than
does Rule 60(b). See Helm v. Resolution Trust Corp.,
43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City
of Chicago, 2 F.3d 752, 760 (7th Cir. 1993)
(distinguishing the “exacting standard” of Rule
60(b) from the “more liberal standard” of Rule
motion was filed outside the 28 day window, thus Rule 60
governs. The Court finds that Jordan is not entitled to
relief under the Rule 60 standard. After reviewing the record
again, the Court finds that Jordan identifies no manifest
error of law, newly discovered evidence, fraud, mistake, or
excusable neglect that dictates a different result. His
motion merely takes umbrage with the Court's previous
ruling and rehashes old arguments that have been addressed by
the Court. Again Jordan takes issue with his appointed
counsels. In a nutshell, Jordan argues that Mr. Hale's
representation has rendered the state court proceedings void
and that since Mr. Hale's retirement he has had two new
attorneys and thus the proceedings have been delayed. As
stated in the Court's previous Memorandum and Order:
“However, because petitioner has no constitutional
right to counsel in state court proceedings, he has no
constitutional right to effective assistance of counsel.
Counsel's performance cannot be the basis for finding
that the delay in state court proceedings is inordinate and
unjustifiable. Sceifers, 46 F.3d 701, 704 (7th Cir.
1995).” (Doc. 24, p. 7). In rendering this Order and
the Memorandum and Order dismissing without prejudice
Jordan's habeas corpus for failure to exhaust state
remedies, the Court examined the record and the case law
submitted by the parties and remains convinced of the
correctness of its position. Thus, the Court denies
the Court DENIES Jordan's motion (Doc. 44).
petitioner wishes to appeal the dismissal of the action or
this Order, his notice of appeal must be filed with this
court within thirty days of the date of this order. Fed. R.
App. P. 4(a)(4). A motion for leave to appeal in forma
pauperis (“IFP”) should set forth the issues
petitioner plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C). If petitioner does choose to appeal and
is allowed to proceed IFP, he will be liable for a portion of
the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past
six months) irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger,547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133