The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Rodney T. Wilson's (Wilson) pro se motion, brought pursuant to Federal Rule of Civil Procedure 59(e) (Rule 59(e)), to alter, amend, or vacate the judgment. For the reasons stated below, the court denies the motion to alter, amend or vacate the judgment.
On May 15, 2007, a jury convicted Wilson on Count One of the indictment in criminal case number 06 CR 509 (Indictment), which charged Wilson with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On August 22, 2007, the court in the criminal action sentenced Wilson to 95 months imprisonment. Wilson appealed his sentence and on January 5, 2009, the judgment of the district court was affirmed by the Seventh Circuit. On February 24, 2010, Wilson filed a motion to vacate or set aside his sentence brought pursuant to 28 U.S.C. § 2255 (Section 2255 Motion). On January 7, 2011, the instant action was reassigned to the undersigned judge. On February 1, 2011, this court denied the Section 2255 Motion. Wilson now requests that the court reconsider its denial of the Section 2255 Motion.
Rule 59(e) permits parties to file, within 28 days of the entry of a judgment, a motion to alter or amend a judgment. Fed. R. Civ. P. 59(e). Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "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, for a Rule 59(e) motion, the movant '"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, 781F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny a motion brought pursuant to Rule 59(e) "is entrusted to the sound judgment of the district court. . . ." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
I. Dismissal of Indictment Based on Whitehead Affidavit
In denying the Section 2255 Motion, this court concluded that Wilson did not show that his trial counsel was ineffective for failing to seek the dismissal of the Indictment after allegedly receiving an affidavit (Whitehead Affidavit) from defense witness Terrance Whitehead (Whitehead). Wilson asserts in his instant motion that this court incorrectly stated his argument in its ruling and "primarily focused on a claim not raised by" Wilson. (Recon 2). Wilson states in the instant motion that he argued in his Section 2255 Motion that his counsel was ineffective for not attempting to get the Whitehead Affidavit admitted into evidence, which would have supported his defense at trial. However, Wilson's contentions in his instant motion are not supported by the record. Wilson argued in his Section 2255 Motion as Ground One that his counsel was ineffective. In explaining why his counsel was ineffective, Wilson stated that his trial counsel and Wilson "discussed how to proceed with the affidavit numerous times." (Mot. 4). Wilson stated that he "asked [his counsel] isn't there some type of motion you can file to have a hearing where Whitehead could tell this to the Judge and get [his] case dismissed [?]" (Mot. 4). Wilson then indicated in his Section 2255 Motion that his trial counsel was ineffective for telling Wilson that there was no such motion and for failing to seek to get the case dismissed. (Mot. 4). Wilson did not argue in his Section 2255 Motion, as he now asserts, that his counsel was ineffective because "the Whitehead Affidavit could have been used as some form of exculpatory evidence, thus, supporting his defence [sic.]" (Recon 2).
Wilson also argues that the court did not consider his arguments regarding the Whitehead Affidavit included in his two reply briefs that indicated his counsel should have sought to have the Whitehead Affidavit admitted into evidence.
However, a reply brief allows a movant to respond to arguments that are made by the other party in a response brief. A reply brief does not provide a movant the opportunity to shift his positions and make new arguments. See Casna v. City of Loves Park, 574 F.3d 420, 427 n.1 (7th Cir. 2009) (explaining that "[t]he non-moving party should always have a chance to respond to the movant's arguments" and that including an argument for the first time in a reply brief deprives the non-movant "of that opportunity"). Thus, to the extent that Wilson presented new arguments in his reply briefs regarding the Whitehead Affidavit and its admission into evidence, they were improper arguments for his reply briefs.
Despite the fact that Wilson presented new arguments in his reply briefs, the court considered the arguments included in his reply briefs, and liberally construed all of Wilson's filings in this case. The court concluded that Wilson did not show that his counsel was ineffective for failing to seek to admit the Whitehead Affidavit into evidence. The record indicates that at Wilson's trial, Whitehead testified on cross-examination that he sent an affidavit to Wilson's mother and that the affidavit was supposed to have been forwarded to Wilson's trial counsel. Wilson also contended in his Section 2255 Motion that his trial counsel possessed the Whitehead Affidavit in November 2006, before Wilson's trial. However, as indicated in this court's prior ruling, Wilson's counsel denied at the trial that he ever received the Whitehead Affidavit and Wilson's counsel and Wilson himself both signed a stipulation (Stipulation), which was admitted at Wilson's trial, agreeing that Wilson's counsel never received any correspondence or affidavit from Whitehead.
Thus, the record reflects that Wilson's trial counsel did not possess the Whitehead Affidavit at Wilson's trial, and thus could not have moved to admit it into evidence.
Even if Wilson could show that his counsel possessed the Whitehead Affidavit prior to Wilson's trial, Wilson has not shown that the Whitehead Affidavit would have been admitted into evidence or, if admitted, would have materially altered the outcome in his case. In fact, the admission of the Whitehead Affidavit may have had an overall negative impact on Wilson's defense since, as the Government pointed out, there were several inconsistencies between the information in the Whitehead Affidavit and Whitehead's testimony at trial. Thus, Wilson has not shown that the court erred in concluding that Wilson had not shown that his trial counsel was ...