McCall v. Mitchem

Filing 34

ORDER denying 31 Motion to Amend or Alter Judgment. Signed by Judge Kristi K. DuBose on 7/19/2012. (copy mailed to McCall) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEON McCALL,
Petitioner,
v.
BILLY MITCHEM,
Respondent.

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CIVIL ACTION NO. 11-00507-KD-C

ORDER
This matter is before the Court on Petitioner Leon McCall’s pro se Rule 59(e) Motion to
Alter or Amend Judgment. (Doc. 31). Specifically, McCall contends that the June 1, 2012
Order and Judgment (Docs. 27, 28) – which adopted the Report and Recommendation of the
Magistrate Judge and dismissed as time-barred McCall’s request for habeas corpus relief and
denied a certificate of appealability-- is clearly erroneous. (Doc. 31 at 1-2).
As stated in Fetterhoff v. Liberty Life Assur. Co., 2007 WL 1713349, *1 (S.D. Ala. Jun.
11, 2007) (internal citations omitted and emphasis in original):
The decision whether to alter or amend a judgment pursuant to Rule 59(e) is
"committed to the sound discretion of the district judge." . . . :
A motion to alter or amend a judgment must demonstrate why the
court should reconsider its prior decision and "set forth facts or law
of a strongly convincing nature to induce the court to reverse its
prior decision." .... courts have recognized three grounds justifying
reconsideration of an order: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the
need to correct clear error or manifest injustice. .... Reconsideration
of a previous order is an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce
judicial resources . . .
See also e.g., Sonnier v. Computer Programs & Systems, Inc., 168 F. Supp. 2d 1322, 1336 (S.D.

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Ala. 2001). It is well settled that a Rule 59(e) motion may not be used to relitigate old matters or
to present arguments or evidence that could have been raised prior to judgment. Shaarbay v.
Florida, 269 Fed. Appx. 866 (11th Cir. 2008) (unpublished).
McCall’s Rule 59(e) motion has failed to demonstrate an intervening change in
controlling law, the availability of new evidence, or the need to correct clear error or manifest
injustice. In sum, McCall has not set forth any basis for Rule 59(e) relief. Accordingly, it is
ORDERED that McCall’s motion (Doc. 31) is DENIED.
DONE and ORDERED this the 19th day of July 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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