USA v. Isan Contant

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY JR. and SCIRICA, Circuit Judges. Total Pages: 6. BLD-275

Case: 17-1635

Document: 003112694920

Page: 1

BLD-275

Date Filed: 08/08/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 17-1635
____________
UNITED STATES OF AMERICA
v.
ISAN CONTANT,
Appellant
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-10-cr-00355-001)
District Judge: Yvette Kane
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 8, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: August 8, 2017)
_________
OPINION*
_________

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1635

Document: 003112694920

Page: 2

Date Filed: 08/08/2017

Isan Contant appeals from an order of the District Court denying as moot his
motion to alter or amend the judgment and motion for recusal. For the reasons that
follow, we will summarily affirm.
Contant, a native and citizen of Trinidad and Tobago, was convicted in the United
States District Court for the Middle District of Pennsylvania of hindering his removal in
violation of 8 U.S.C. § 1253(a)(1)(C).1 After a bench trial, the District Court found him
guilty and sentenced him to a term of imprisonment of 14 months. Judgment was entered
on June 23, 2011. While Contant’s direct appeal was pending, the Government
successfully removed him from the United States. In April, 2012, we affirmed the
criminal judgment, see United States v. Contant, 467 F. App’x 141, 143 (3d Cir. 2012)
(“Contant I”).
In April, 2014, Contant, who had since completed his sentence for the hindering
removal conviction, filed a pro se petition for writ of error coram nobis in the District
Court, collaterally attacking his conviction. In an order entered on September 12, 2014,
the District Court denied the coram nobis petition, and Contant appealed. In January
2016, we affirmed, see United States v. Contant, 638 F. App’x 146, 148 (3d Cir. 2016)
(“Contant II”).
On April 11, 2016, Contant filed another pro se petition for writ of error coram
nobis in the District Court. Citing 8 U.S.C. § 1252(a)(5), Contant claimed that the
District Court lacked jurisdiction to convict him of hindering his removal because, at the

An Immigration Judge ordered Contant’s removal and his appeal of that order to the
Board of Immigration Appeals was unsuccessful.
1

2

Case: 17-1635

Document: 003112694920

Page: 3

Date Filed: 08/08/2017

time of his indictment and conviction, his petitions for review of the final order of
removal were pending in this Court. He also argued that his counsel was ineffective for
failing to file a motion to dismiss the criminal indictment for lack of jurisdiction or a
motion challenging the validity of the order of removal. Citing United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), Contant further contended that the hindering
removal statute, 8 U.S.C § 1253(a)(1)(C), is unconstitutional as applied to him. Contant
then filed a motion to supplement the coram nobis petition.
In an order entered on August 29, 2016, the District Court denied the coram nobis
petition, and denied as moot Contant’s motion to supplement it. The Court noted that it
had previously rejected jurisdictional and ineffective assistance of counsel arguments,
and that we had affirmed those determinations on appeal in Contant II. The Court thus
declined to revisit any issues relating to jurisdiction or counsel’s alleged ineffectiveness
in the second coram nobis petition. The Court rejected Contant’s due process argument
because § 1252(b)(7)(A) provides that if “the validity of an order of removal has not been
judicially decided, a defendant in a criminal proceeding charged with violating section
1253(a) of this title may challenge the validity of the order in the criminal proceeding
[but] only by filing a separate motion before trial.” 8 U.S.C. § 1252(b)(7)(A) (brackets
and emphasis added). Although Contant’s consolidated petitions for review were indeed
pending at the time, he had failed to file a motion before trial challenging the removal
order. Thus, his argument that he had been denied due process of law was not
persuasive. The District Court also held that Mendoza-Lopez was inapposite.

3

Case: 17-1635

Document: 003112694920

Page: 4

Date Filed: 08/08/2017

Contant timely appealed on September 19, 2016. While that appeal was pending,
Contant, on September 30, 2016, filed in the District Court an untimely motion to alter or
amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.”).2 Less than a week later he also filed a motion for recusal. The Government
answered the Rule 59(e) motion and motion for recusal, arguing that the motions should
be dismissed.
On February 9, 2017, we summarily affirmed the District Court’s order denying
Contant’s second coram nobis petition, see United States v. Contant, --- F. App’x ---,
2017 WL 527897 (3d Cir. 2017) (“Contant III”). We held that the District Court properly
declined to revisit Contant’s claim that jurisdiction to convict him of hindering his
removal was lacking; that the Court did not err in denying his second coram nobis
petition without first requiring the Government to respond; and that the Court did not err
in denying as moot his motion to supplement his petition. We agreed with the District
Court that coram nobis relief was not warranted because Contant failed to take advantage
of the opportunity provided by § 1252(b)(7)(A), and that Mendoza-Lopez could be
distinguished. In summarily affirming the District Court’s order denying Contant’s
motion to supplement, we noted our prior holding in Contant II that coram nobis relief
would not lie based on developments that took place well after Contant hindered his

2

An untimely Rule 59(e) motion does not toll the time for taking an appeal, Fed. R. App.
Pro. 4(a)(4)(A).
4

Case: 17-1635

Document: 003112694920

Page: 5

Date Filed: 08/08/2017

removal, see Contant III, --- F. App’x ---, 2017 WL 527897 at *3 (citing Contant II, 638
F. App’x. at 148-49).
In an order entered on February 24, 2017, the District Court denied Contant’s Rule
59(e) motion and motion for recusal on the basis of mootness. Contant now appeals that
order.3 We have jurisdiction under 28 U.S.C. § 1291.4 Our Clerk advised Contant that
his appeal was subject to summary action under Third Cir. LAR 27.4 and I.O.P. 10.6..
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
purpose of a motion for reconsideration is “‘to correct manifest errors of law or fact or to
present newly discovered evidence.’” Max’s Seafood Café v. Quinteros, 176 F.3d 669,
677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
The District Court may grant a motion for reconsideration if the moving party shows: (1)
an intervening change in the controlling law; (2) the availability of new evidence which
was not available when the court issued its order; or (3) the need to correct a clear error
of law or fact or to prevent a manifest injustice. See North River Ins. Co. v. Cigna
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
The District Court denied Contant’s Rule 59(e) motion for reconsideration as moot
because the arguments he raised in it were the same as those we considered on appeal in

The Court also denied Contant’s motion for leave to file documents electronically.
Contant’s notice of appeal does not reference this part of the District Court’s order and
thus we will not review it, see Fed. R. App. P. 3(c)(1)(B).
3

4

Contant does not need a certificate of appealability to proceed with this appeal. See
United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 2000) (per curiam).
5

Case: 17-1635

Document: 003112694920

Page: 6

Date Filed: 08/08/2017

Contant III and ultimately decided adversely to him. This was proper. Contant’s Rule
59(e) motion made the same jurisdictional argument, the same argument relating to the
constitutionality of the hindering removal statute, 8 U.S.C. § 1253(a)(1)(C), the same
argument concerning the propriety of a supplement to the coram nobis petition, and the
same argument concerning the lack of an answer from the Government. We agree with
the District Court that when a litigant uses Rule 59(e) merely to relitigate the issues
already decided, and, in the meantime, the appeals court has summarily affirmed the
District Court, the Rule 59(e) motion is properly dismissed as moot. In any event,
Contant plainly did not meet the standard for reconsideration in that his Rule 59(e)
motion was not based on an intervening change in the law, was not based on new
evidence, and was not, given our affirmance, based on any alleged error by the District
Court or manifest injustice. Contant’s post-judgment motion for recusal is meritless and
we will summarily affirm on that basis. Contant’s assertion of bias is unsupported by
anything in the record, and the District Court’s general familiarity with his cases does not
warrant recusal. Cf. Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278
(3d Cir. 2000) (party’s displeasure with legal rulings does not provide adequate basis for
recusal).
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Contant’s Rule 59(e) motion to alter or amend the judgment and motion to
recuse.

6