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Walter C. Smith, Iii v. United States of America

December 11, 2012

WALTER C. SMITH, III, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. INTRODUCTION

Pending before the Court is petitioner Walter C. Smith, III's, motion titled, "59(E) Request" (Doc. 10). Petitioner asks that the Court reconsider the judgment entered against him on October 30, 2012, denying petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 9). Petitioner's Section 2255 motion raised seven separate claims for relief alleging issues either addressed on direct appeal of his criminal conviction, procedurally defaulted, or completely without merit. Instantly, petitioner meticulously recounts every claim he brought in his initial petition and re-alleges and expands upon the underlying factual bases of his rejected arguments. As petitioner has not presented grounds warranting reconsideration of this Court's judgment, his motion is DENIED (Doc. 10).

II. LAW

Section 2255 generally permits a federal prisoner one round of collateral review. Successive motions require permission from the Seventh Circuit before this Court has jurisdiction to entertain them. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3)(A); United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007). Thus, the Court must first determine whether it has jurisdiction to consider petitioner's pleading.

Petitioner requests that the Court reconsider its denial of his Section 2255 motion. The FEDERAL RULES OF CIVIL PROCEDURE do not expressly contemplate motions to "reconsider." However, the Seventh Circuit has held district courts should automatically consider motions challenging the merits of a district court order under Rule 59(e) or Rule 60(b). See Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). The characterization of petitioner's motion as one brought pursuant to Rule 59(e) or Rule 60(b) is particularly important in the instant case. It appears in the Seventh Circuit that Rule 59(e) motions are not necessarily considered collateral attacks on judgment, while Rule 60(b) motions generally are considered successive collateral attacks. Curry v. United States, 307 F.3d 664, 665 (7th Cir. 2002). To this end, the Seventh Circuit stated in Curry,

We must now decide, in considering this appeal from the denial of a Rule 59(e) motion, whether motions under that rule to alter or amend judgments are also affected by the statutory limitations on successive collateral attacks on criminal judgments . . . A Rule 60(b) motion is a collateral attack on a judgment, which is to say an effort to set aside a judgment that has become final through exhaustion of judicial remedies. A Rule 59(e) motion is not; filed as it must be within 10 days of the judgment, it suspends the time for appealing. Since such a motion does not seek collateral relief, it is not subject to the statutory limitations on such relief.

Id.

However, the Court notes slight reservation in proceeding pursuant to this language, as it appears this reasoning was not strictly necessary to the holding in Curry. The Seventh Circuit ultimately determined in Curry that the petitioner's motion was not in fact a Rule 59(e) motion, but a Rule 60(b) motion. Id. at 666. While petitioner titled the motion a Rule 59(e) motion and filed it within 10 days of the court's denial of his second motion to vacate sentence (the requisite time period under Rule 59(e) at that time), the Seventh Circuit determined it was not a Rule 59(e) motion. It did not attack the judgment entered 10 days earlier, but instead attacked an earlier habeas judgment. Id. Thus, the Seventh Circuit treated the motion as one pursuant to Rule 60(b) and accordingly subject to the restraints placed on successive motions to vacate. Id.; see Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002). Nevertheless, the Court shall proceed under the assumption that the Seventh Circuit does not generally treat true Rule 59(e) motions as successive collateral attacks. See Howard v. United States, 533 F.3d 472, 475-76 (6th Cir. 2008) (Relying on reasoning of Curry in holding Rule 59(e) motions are not subject to the statutory limitations placed on successive attacks on criminal judgments). Thus, the Court must determine whether petitioner's motion is a true Rule 59(e) motion.

Instantly, petitioner filed his motion within 28 days of the entry of the challenged Order. See FED. R. CIV. P. 59(e) (stating, "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment"). However, "whether a motion filed within [28] days of the entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends on the substance of the motion, not on the timing or label affixed to it." Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (emphasis in original) (citing Borrero v. City of Chicago, 456 F.3d 698, 701-02 (7th Cir. 2006) (holding, "the former approach-that no matter what their substance, all post-judgment motions filed within [28] days of judgment would be construed as Rule 59(e) motions no longer applies")). Petitioner's instant motion generally expands upon the factual bases underlying his seven rejected claims and argues the Court should reconsider its legal conclusions. Thus, as petitioner seeks to alter or amend (or reconsider or revise) the judgment, it is a Rule 59(e) motion. See Curry, 307 F.3d at 666.

Rule 59(e) motions allow a court to reconsider matters "properly encompassed in a decision on the merits." Osterneck v. Ernst and Whinney, 489 U.S. 169, 174 (1989). However, relief pursuant to Rule 59(e) is an extraordinary remedy, as a motion pursuant to it solely,

[A]llows a party to direct the district court's attention to newly discovered material evidence or a manifest error of law or fact, and enables the court to correct its own errors and thus avoid unnecessary appellate procedures. The rule does not provide a vehicle for a party to undo its own procedural failures and it certainly does not allow a party to introduce new evidence or advance 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) (citations omitted). Thus, a Rule 59(e) motion serves three very limited purposes, as it applies only where there is: 1. newly discovered evidence; 2. an intervening change in the controlling law; or 3. a manifest ...


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