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Stallings v. United States

October 12, 2006

BRETT A. STALLINGS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court is petitioner's motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e). (Doc. 13). Petitioner seeks to have the Court reconsider its order dismissing petitioner's § 2255 motion to vacate, set aside or correct sentence. (See Doc. 11). In his motion, petitioner reiterates the same arguments he raised in his § 2255 motion and also alleges that the Court should recuse itself because John Bailey, whose house was broken into by petitioner, is "an employee and/or long term friend of the [C]court." (See Doc. 13, p. 13).

ANALYSIS

A motion for reconsideration "allows a party to direct the district court's attention to newly discovered material evidence or a manifest error of law or fact." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996). The motion for reconsideration is not an opportunity for a party to correct its own procedural failures or introduce evidence that should have been brought to the attention of the court prior to judgment. See, Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir. 1999); see, also Calumet Lumber, Inc. v. Mid-America Indus., Inc., 1996 WL 308243, at *1 (N.D. Ill. June 5, 1996).

The Federal Rules of Civil Procedure provide two ways in which a party may seek reconsideration of the merits of an order of the Court, namely, Rule 59(e) or Rule 60(b). United States v. Deutsch, 981 F.2d 299, 300 (7th Cir.1992). Under Rule 59(e), a litigant may move the Court to alter or amend a judgment on three limited bases: newly discovered evidence; an intervening change in the controlling law; or manifest error of law or fact. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir.1998); In re Prince, 85 F.3d 314, 324 (7th Cir.1996); Moro v. Shell Oil Co ., 91 F.3d 872, 876 (7th Cir.1996); Russell v. Delco Remy Div. Of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995). Petitioner's arguments do not fall under any of these categories, and his is, therefore, not entitled to relief pursuant to Rule 59(e). The motion will, however, be construed under Rule 60(b).

Rule 59(e) must be invoked within ten days of the entry of the judgment. Russell, 51 F.3d 746 at ____; Fed. R. Civ. P. 59(e).Here, the order at issue was entered on August 24, 2006. Petitioner's motion to alter or amend was filed on September 7, 2006.*fn1 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)." Deutsch, 981 F.2d at 301. Rule 60(b) is similar to Rule 59(e) in that it enables a party to seek relief from a court's order; however, a court may grant relief only under the particular circumstances enumerated in the Rule, including: 1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or (6) any other reason justifying relief from the operation of the judgment. "Rule 60(b) is . . . an extraordinary remedy," which does not allow for "general pleas of relief." Deutsch, 981 F.2d at 301 (internal citation omitted). Nor is Rule 60(b) the "proper avenue to redress mistakes of law committed by the trial judge." Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989).

Petitioner argues that the Court should alter or amend its order because (1) he received ineffective assistance of counsel on appeal, (2) the Court improperly considered petitioner's criminal history in determining his sentence, (3) and the Court's "relationship" with John Bailey raises the question of impartiality. None of these arguments entitle petitioner to relief under Rule 60(b). The first two arguments were considered and dismissed by the Court when denying his § 2255 motion to vacate, set aside or correct sentence, thus, they are not of the variety allowed in a Rule 60(b) motion. The third argument, as to the Court's impartiality, also fails.

STANDARDS GOVERNING DISQUALIFICATION

Without being specific, the defendant appears to be seeking disqualification under 28 U.S.C. §455. Section 455 provides in pertinent part: § 455. Disqualification of justice, judge, or magistrate.

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or ...


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