United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.
matter is before the Court on a “Motion to Correct a
Manifest Error of Law & Fact” filed by J L Houston.
(Doc. 13). For the reasons stated below, the motion is
comprehensive explanation of the background in this case can
be found in this Court's May 31, 2018, Order &
Opinion. (Doc. 11). Judge James B. Zagel, a district judge in
the Northern District of Illinois, presided over Petitioner J
L Houston's 1997 trial where Houston was convicted of
narcotics and racketeering conspiracy. He is currently
serving a life sentence. Before trial, Houston and other
co-defendants unsuccessfully sought Judge Zagel's recusal
under 28 U.S.C. § 144 and § 455(a).
Circuit law at the time of Houston's conviction and
appeal provided that a recusal motion was preserved for
appeal only where a defendant immediately moved for a writ of
mandamus in the event that the district judge denied the
motion for recusal. United States v. Franklin, 197
F.3d 266, 269 (7th Cir. 1999); United States v.
Towns, 913 F.2d 434, 443 (7th Cir.1990). Because Houston
failed to request the writ after Judge Zagel denied
Houston's § 455(a) motion for recusal, the Seventh
Circuit held that he waived the recusal issue on appeal.
Franklin, 197 F.3d at 269. Houston also waived his
attempt to adopt recusal motions filed by co-defendants
because Houston failed to remind Judge Zagel to rule on those
unaddressed motions prior to trial. Id. at 270;
United States v. Taglia, 922 F.2d 413, 416 (7th
Cir.1991) (a defendant's failure to remind the court to
rule on a pre-trial motion constituted a waiver). Due to
Houston's waiver, the Seventh Circuit reviewed Judge
Zagel's denial of the § 455(a) motion for
“plain error, ” which allows the Court of Appeals
to correct only “particularly egregious errors for the
purposes of preventing a miscarriage of justice.”
Franklin, 197 F.3d at 270 (citing United States
v. Marvin, 135 F.3d 1129, 1135 (7th Cir.1998)). Finding
no such error, the Seventh Circuit affirmed. Id.
February 8, 2017, Houston filed a Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241. (Doc. 1). Houston
argued that he was entitled to a new trial, in front of a
different district court judge, under the authority of
Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016), and
Williams v. Pennsylvania, 136 S.Ct. 1899 (2016).
Fowler overruled precedent that the Seventh Circuit
relied on during Houston's direct appeal. Specifically,
Fowler held that the Seventh Circuit could consider
§ 455 recusal arguments on direct appeal, and that
filing a writ of mandamus was unnecessary to preserve recusal
motions for appeal. 829 F.3d at 791. Williams held
that a Pennsylvania Supreme Court justice, who as a district
attorney had given approval to seek the death penalty against
an inmate, violated the Due Process Clause by not recusing
himself and participating in the decision to reinstate the
death sentence. 136 S.Ct. at 1907-08.
31, 2018, this Court denied Houston's § 2241
Petition. The Court ruled that Petitioner was not entitled to
relief under § 2241 because he had not shown that 28
U.S.C. § 2255 was inadequate or ineffective. (Doc. 11).
Specifically, Houston's § 2241 arguments were not
based on a new rule previously unavailable and one that
applied retroactively. Id. On June 5, 2018, Houston
filed a “Motion Pursuant to Fed. R. Civ. Proc. 59(e) to
Correct ‘a Manifest Error of Law &
Fact'”. (Doc. 13). As will be discussed below, this
Court did not commit a manifest error of law and
Houston's motion is denied.
59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
(7th Cir.2007)). Relief pursuant to a Rule 59(e) motion is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008). A manifest error “is not demonstrated
by the disappointment of the losing party. It is the
wholesale disregard, misapplication, or failure to recognize
controlling precedent.” Metropolitan Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and
quotation marks omitted). Habeas petitioners like Houston
cannot use Rule 59(e) as a way to relitigate issues already
addressed and denied by the Court. See Barnes v.
Lashbrook, No. 16-798, 2017 WL 2574021, at *1 (S.D. Ill.
June 14, 2017), appeal dismissed sub nom., No.
17-2370, 2017 WL 6762224 (7th Cir. July 18, 2017).
Court dismissed Houston's § 2241 Petition for three
reasons: (1) Fowler is not a Supreme Court case; (2)
Fowler does not apply retroactively; and (3)
Williams does not apply retroactively. (Doc.
first argues that this Court “failed to
recognize” the Seventh Circuit's decision in
Hicks v. Stanci, 642 Fed.Appx. 620 (7th Cir. 2016)
(mem.) (unpub), but Hicks is an unpublished decision
and is distinguishable from this case. While a 2241
Petitioner in Hicks relied on a Circuit Court
ruling-rather than a Supreme Court ruling-to successfully
challenge his sentence, the Government in that case
“expressly waive[d]” any argument that
Hicks could not use § 2241. 642 Fed.Appx. at 621. As
such, the Seventh Circuit held that “[i]n light of the
government's waiver on appeal, Hicks may invoke §
2241.” Id. The Seventh Circuit in Light v.
Caraway, 761 F.3d 809, 812 (7th Cir. 2014), explicitly
stated that “our circuit allows for a § 2241
challenge based on a new statutory interpretation by the
Supreme Court, ” though the Government may waive §
2255(e)'s requirements as it did in Hicks.
also points to United States v. Wheeler, 886 F.3d
415, 429 (4th Cir. 2018), where the Fourth Circuit held that
a change in the Fourth Circuit's controlling law sufficed
to satisfy the savings clause. But Fourth Circuit precedent
is not controlling in this circuit. And more importantly, in
this particular context, Fourth Circuit precedent is not
persuasive because the Fourth Circuit interprets the savings
clause much differently than the Seventh Circuit. See
Wheeler, 886 F.3d at 425 (noting that the Seventh
Circuit does not interpret § 2255(e) as jurisdictional,
while the Fourth Circuit considers the savings clause
event, even if Houston were correct that he could rely on
Fowler as a statutory interpretation case, his 2241
petition would still fail because Fowler is not
retroactive. In his Motion, Hicks again argues that
Fowler is retroactive, but he already raised this
issue in his § 2241 Petition and the Court already held,
for the reasons stated in its May 31, 2018, Order &
Opinion, that Fowler is not retroactive for purposes
of the savings clause. See ...