Opinion
File No. 1:08-CV-1115
08-14-2012
BENJAMIN PRESTON FOREMAN, Movant, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Movant pled guilty to possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii), possessing with intent to distribute cocaine in violation of 21 U.S.C. §§ (a)(1) and (b)(1)(c), and possessing a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(a)(i). He was sentenced to concurrent prison terms of 240 months for the possession and intent to distribute cocaine, and to a consecutive term of 60 months for the firearm conviction. Movant waived his right to appeal, which resulted in a dismissal of his direct appeal. Movant filed a § 2255 motion to vacate, set aside or correct his sentence on November 28, 2008. That motion was denied, and a certificate of appealability declined, on July 19, 2010. (Dkt. Nos. 12-14.)
On August 23, 2010, Movant filed a motion for reconsideration under Fed. R. Civ. P. 59(e). (Dkt. No. 15.) This Court denied portions of Movant's Rule 59(e) motion, but determined that four new grounds raised for the first time in the Rule 59(e) motion constituted a second or successive motion to vacate. Having determined that Movant's new claims could be interpreted as a second or successive motion to vacate, the Court transferred those claims to the Sixth Circuit Court of Appeals. (Dkt. Nos. 21, 22.)
The Court of Appeals has since determined that the transferred motions were not second or successive in light of their decision in Howard v. United States, 533 F.3d 472 (6th Cir. 2008), which held that the statutory limitations against second or successive habeas petitions should not apply to Rule 59(e) motions. The Sixth Circuit remanded the transferred claims for resolution by this court.
This is in contrast to post-judgment motions made pursuant to Rule 60(b), where the Supreme Court has held that motions which seek to add new claims should be regarded as second or successive. Gonzales v. Crosby, 545 U.S. 524, 532 (2005). --------
Under Fed. R. Civ. Pro. 59(e), "[a] court may grant a motion to alter or amend judgment only if there was '(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" Am. Civil Liberties Union v. McCreary Cnty., 607 F.3d 439, 450 (6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). To constitute "newly discovered evidence," the evidence must have been previously unavailable. See GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). A motion under Rule 59(e) is not intended to be utilized to relitigate issues previously considered. Equal Emp't Opportunity Comm'n v. Argent Indus., Inc., 746 F. Supp. 705, 706 (S.D. Ohio 1989). Neither should it be used as a vehicle for submitting evidence which in the exercise of reasonable diligence could have been submitted before. Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406, 1419 (D. Md. 1991). It allows for reconsideration; it does not permit parties to effectively "re-argue a case." Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 374 (6th Cir. 2008).
The Appellate Court aptly summarizes Movant's new claims: that "(1) he is actually innocent of being a career offender; (2) his sentencing procedure was invalid; (3) he is actually innocent of the firearm offense; and (4) his sentence is void because it was enhanced using a prior conviction that was dismissed." (Dkt. No. 30 at 2.) As stated above, the purpose of a rule 59(e) motion is to prevent injustice due to mistake, error, or discovery of previously-undiscoverable evidence. Movant does not here advance any new evidence or intervening change in relevant law. He also fails to make any showing that these new issues could not have been raised in his initial § 2255 motion. The Court finds that justice does not require amendment. Accordingly,
IT IS HEREBY ORDERED that the remaining claims in Movant's motion for reconsideration under Fed. R. Civ. P. 59(e) (Dkt. No. 15) are DENIED.
IT IS FURTHER ORDERED that Movant's motions for counsel (Dkt. No. 31), a hearing (Dkt. No. 32), and expedited consideration (Dkt. No. 35) of the remanded Rule 59(e) claims are denied as MOOT. Dated: August 14, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE