The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Lawrence Howard's
("Howard") motion for certificate of appealability and in the
alternative a motion for reconsideration. For the reasons stated
below, we grant the motion for reconsideration and deny the
motion for certificate of appealability.
Howard was convicted in Illinois state court on two counts of
First Degree Murder and sentenced to forty-five (45) years
imprisonment. Howard alleges that an Illinois Appellate court and
the Supreme Court of Illinois affirmed the convictions. Howard also claims that in collateral proceedings an Illinois
trial court dismissed his claim and that the ruling was affirmed
by an Illinois appellate court and the Supreme Court of Illinois.
On March 24, 2004, Howard filed the instant Habeas petition. On
June 17, 2004, we dismissed Howard's petition for failing to file
his petition within the required time limit. Howard now asks us
to vactae our prior ruling and seeks a certificate of
I. Certificate of Appealability
If a court denies a petition for writ of habeas and the
petitioner wishes to appeal, challenging the decisions made by
the state trial courts, the petitioner must seek a certificate of
appealability from the district court. 28 U.S.C. § 2253(c). A
district court should only issue a certificate of appealability
"if the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner
must also show that "reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were
`adequate to deserve encouragement to proceed further.'" Slack
v. McDonnell, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
II. Motion For Reconsideration
Rule 59(e) permits parties to file, within ten days of the
entry of a judgment, a motion to alter or amend the judgment.
Fed.R. Civ. P. 59(e). Motions for reconsideration under Rule
59(e) are appropriate to correct manifest errors of law or fact
or to present newly discovered evidence. Publishers Res., Inc.
v. Walker-Davis Publ'ns, Inc., 762 F.2d 557, 561 (7th Cir.
1985). Such motions do not give a party the opportunity to rehash
old arguments or to present new arguments "that could and should
have been presented to the district court prior to the judgment."
Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996) (citing
LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267
(7th Cir. 1995)). Rather, a Rule 59(e) motion "must clearly
establish either a manifest error of law or fact or must present
newly discovered evidence" in order to be successful. LB Credit
Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v.
Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of
whether to grant or deny a Rule 59(e) motion "is entrusted to the
sound judgment of the district court. . . ." In re Prince,
85 F.3d 314, 324 (7th Cir. 1996).
If a party does not file the motion for reconsideration within
ten business days "after entry of judgment[, it] automatically
becomes a Rule 60(b) motion." Talano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757
762 (7th Cir. 2001) (quoting Hope v. United States,
43 F.3d 1140
, 1143 (7th Cir. 1994)); S.E.C. v. Van Waeyenberghe,
284 F.3d 812
, 814 (7th Cir. 2002) (indicating that 10
business days is the deadline); United States v. Deutsch,
981 F.2d 299
, 301 (7th Cir. 1992) (holding that "motions to alter
or amend a judgment served more than ten days after the entry of
judgment are to be evaluated under Rule 60(b)."); Fed R. Civ. P.
6(a). Federal Rule of Civil Procedure 60(b) provides:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, Etc. On motion and upon
such terms as are just, the court may relieve a party
or a party's legal representative from a final
judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered
in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying
relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceeding was entered
or taken. A motion under this subdivision (b) does
not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a
court to entertain an independent action to relieve a
party from a judgment, order, or proceeding, or to
grant relief to a defendant not actually personally
notified as provided in Title 28, U.S.C., § 1655, or
to set aside a judgment for fraud upon the court.
Writs of coram nobis, coram vobis, audita querela,
and bills of review and bills in the nature of a bill
of review, are abolished, and the procedure for
obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an
Fed.R. Civ. P 60(b). A court should grant a Rule 60(b) motion
"only in exceptional circumstances" because "[r]elief under Rule
60(b) is an extraordinary remedy. . . ." Talano, 273 F.3d at 762 (quoting Provident Sav. Bank v.
Popovich, 71 F.3d 696, 698 (7th Cir. 1995)).
We note that, although Howard entitled his motion "certificate
of appealability," he is proceeding pro se and his filings are
entitled to a liberal interpretation. Howard explains the delay
for his habeas filing and states specifically in his current
motion that he "prays that this Honorable Court will summarily
reconsider his Habeas Corpus Petition in light of the
above. . . ." (Mot. 2). Therefore, we shall deem his instant
motion to be a motion for reconsideration. It appears from the
documentation provided by Howard that he did not file the motion
for reconsideration within ten business days of our prior ruling
and thus our review should be conducted in accordance with Rule
60(b). However, we cannot be certain of the filing date, and the
documents provided are unclear. For instance, the notary republic
signed and dated Howard's motion, but the date is not legible.
Regardless of the date of filing of the motion for
reconsideration, Howard can prevail under Rule 59(e) or Rule
Howard claims that he attempted to mail his petition prior to
the one year deadline. According to Howard, he properly placed
his petition in a legal envelope with an attached money voucher.
Howard has supplied as an exhibit a photocopy of the voucher.
Howard contends that the prison improperly rejected his first
mailing on the basis of inadequate funds. If, as Howard claims,
he properly obtained a stamped mail voucher signed by prison
officials and the prison mistakenly rejected his mail, thereby causing the significant delay in his filing, it
would be the type of extraordinary circumstances that would
warrant granting a motion for reconsideration under Rule 59(e) or
In making our current ruling we are not making a finding
regarding whether or not the prison properly refused to mail
Howard's petition due to insufficient funds and we are not ruling
on whether or not Howard's filing was timely and not barred by
the statute of limiations. Neither are we making any finding
regarding the merits of Howard's habeas corpus petition. We are
only finding that, based on the new evidence brought to light ...