Rogers v. Warden

2015 DNH 054

• Court: District Court, D. New Hampshire
• Decided: March 17, 2015
• Docket: 13-cv-322-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott N. Rogers

v. Civil No. 13-cv-322-LM Opinion No. 2015 DNH 054 Richard Gerry, Warden, New Hampshire State Prison

O R D E R

Before the court are three post-judgment motions (doc. nos.

45-47) filed by Scott Rogers. Through these motions, Rogers

seeks reconsideration of the December 4, 2014, Judgment (doc.

no. 44) and underlying December 4, 2014, Order (doc. no. 43),

which: granted the warden’s motion for summary judgment on

Rogers’s petition filed pursuant to 28 U.S.C. § 2254, denied the

relief requested in that § 2254 petition, declined to issue a

certificate of appealability, and closed this case. Rogers also

seeks appointment of counsel. See Doc. No. 46.

I. Reconsideration

Rogers’s initial post-judgment motion (doc. no. 45), filed

after entry of judgment and written in the form of an open

letter to respondent’s counsel, asks respondent’s counsel and

the court to listen to a recording of a one-party intercept call

between Rogers and a confidential informant known to Rogers, to

reconsider whether to oppose or deny Rogers’s petition for a writ of habeas corpus, and to reduce the length of Rogers’s

sentence. The second motion to reconsider (doc. no. 46)

requests, in pertinent part, reconsideration of the December 4,

2014, Order (doc. no. 43), granting summary judgment on his

§ 2254 claim regarding the one-party intercept call, and denying

the certificate of appealability. The third motion asks this

court to order the state to provide Rogers with a recording of

the one-party intercept call, which Rogers states he would use

to challenge the truth of statements made by a police officer in

an affidavit used to obtain a search warrant.

To the extent Rogers requests reconsideration from the

court and alteration of the judgment through those motions, the

relief requested is denied. Nothing asserted in the post-

judgment motions satisfies the criteria for reconsidering,

altering, or amending a judgment under Federal Rule of Civil

Procedure 59 or 60(b), and Rogers has not demonstrated that the

order underlying that judgment was based on any error of law or

fact.

Moreover, Rogers has had an ample opportunity to litigate

issues relating to the one-party intercept call, and to make the

“substantial showing of the denial of a constitutional right,”

28 U.S.C. § 2253(c)(2), needed to obtain a certificate of

appealability. Rogers’s objection to the summary judgment

motion and his response to the magistrate judge’s November 4,

2 2014, Report and Recommendation asserted that the court should

listen to the phone recording. After giving due consideration

to Rogers’s arguments in those filings, this court denied

Rogers’s requested relief, and determined that Rogers had not

made the showings necessary to obtain either a hearing, or a

certificate of appealability.

With respect to Rogers’s claims regarding the length of his

sentence, footnote 1 of the Magistrate Judge’s November 4, 2014,

Report and Recommendation (doc. no. 39), at p.4, notes that

Rogers raised a similar argument about his sentence in his

objection to the motion for summary judgment. Without

expressing any opinion on the merits of that issue, which had

not previously been listed by Rogers as a separate claim in the

§ 2254 petition, see Jan. 23, 2014, Order (doc. nos. 11 and 11-

1) (listing claims), the Magistrate Judge noted that the issue

did not appear to have been exhausted, and that Rogers’s lengthy

criminal record and recidivism had been cited by the state court

as reasons for the sentence. Rogers, who had an opportunity to

object to the Report and Recommendation, has not pointed to any

record evidence contradicting the Magistrate Judge’s

observations.

Nothing asserted in Rogers’s motions (doc. nos. 45-47)

warrants reconsideration of this court’s December 4, 2014, Order

(doc. no. 43), approving that Report and Recommendation, or any

3 basis for reopening the Judgment (doc. no 44). Accordingly, the

court denies each of Rogers’s post-judgment motions (doc. nos.

45-47), to the extent that they seek such reconsideration.

II. Appointment of Counsel

Rogers’s second post-judgment motion (doc. no. 46) seeks

appointment of counsel. An indigent petitioner is not generally

entitled to representation by counsel with respect to a § 2254

petition, unless an evidentiary hearing has been scheduled, or

the interests of justice otherwise require such an appointment.

See 18 U.S.C. § 3006A(a)(2)(B); United States v. Yousef, 395

F.3d 76, 77 (2d Cir. 2005) (per curiam). This court previously

denied, without prejudice, Rogers’s initial request for court-

appointed counsel in this case, because he had not shown at that

time that the interests of justice warranted an appointment, and

no evidentiary hearing had been scheduled. See May 19, 2014,

Order (doc. no. 24).

Rogers’s filings in this case, while not models of clear

and concise writing, have been fully comprehensible. At this

stage of the case, the interests of justice do not favor an

appointment of counsel, as the clerk has entered judgment in

this case, no grounds for reopening the judgment and

reconsidering the underlying order have been shown, and the

court has denied a certificate of appealability. Accordingly,

4 the court denies Rogers’s renewed request for court-appointed

counsel, set forth in Document No. 46.

Conclusion

For the foregoing reasons, the court denies the relief

requested in Rogers’s post-judgment motions (doc. nos. 45-47).

__________________________________ Landya B. McCafferty United States District Judge

March 17, 2015

cc: Scott Rogers, pro se Elizabeth C. Woodcock, Esq.