Smith v. USA

Filing 11

ORDER denying 10 Motion for Reconsideration.Signed by Chief Judge David R. Herndon on 12/11/2012. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WALTER C. SMITH, III,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 10-cv-536-DRH
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
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).

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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
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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.

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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.
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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 error of law. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th
Cir. 1998).
III.

APPLICATION

Instantly, petitioner has not presented new evidence, an intervening change
in controlling law, or a manifest error of law. Thus, petitioner has not presented
grounds warranting reconsideration of the Court’s judgment of October 30, 2012.
a. Ground One
As to petitioner’s first ground for relief, he argued that false, sworn
testimony formed the basis of the probable cause upon which search warrants of
1837 Arkansas Avenue were based. As the Seventh Circuit rejected this argument
on direct appeal, the Court did not review petitioner’s arguments (Doc. 8, p. 8).
Petitioner’s Rule 59(e) motion does not address the fact this Court is constrained
by the Seventh Circuit’s previous decision. Instead, he merely re-alleges the
factual circumstances surrounding the underlying search warrants. Thus, he has
not presented grounds warranting reconsideration of the Court’s denial.
b. Ground Two
Petitioner’s second claim alleged prejudice as the Court denied his request
for a Franks hearing. Similarly to ground one, the Court did not review
petitioner’s grievance, as it was previously rejected by the Seventh Circuit. Once

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again, petitioner instantly does not address the reason for the Court’s previous
denial. His recitation of his version of the facts underlying the search warrants
does not warrant reconsideration of this Court’s decision.
c. Ground Three
Petitioner’s ground three alleged the government unfairly increased his
punishment, as a prior conviction for which he was successfully discharged from
probation formed the basis of an enhancement under 21 U.S.C. § 851. The Court
noted petitioner’s claim was procedurally defaulted, as he did not raise it on
direct appeal. Alternatively, his claim was meritless pursuant to United States v.
McAllister, 29 F.3d 1180, 1184-85 (7th Cir. 1994). Petitioner’s Rule 59(e) motion
does not present a reason to reconsider this conclusion.
d. Ground Four
Petitioner’s fourth claim alleged ineffective assistance of counsel for his trial
counsel’s failure to request a court reporter’s presence during in-chambers’
meetings. The Court rejected petitioner’s contention finding his trial counsel’s
performance in this regard was not objectively unreasonable and further that any
alleged error had not resulted in prejudice, due to the considerable evidence of
petitioner’s guilt. Again, as petitioner merely re-alleges his arguments previously
rejected, he has not offered a reason to reconsider the Court’s previous
conclusion.

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e. Ground Five
Petitioner next challenged the sufficiency of the evidence upon which the
jury found he participated in the alleged conspiracy. Again, the Court noted
petitioner’s claim was procedurally defaulted, as he did not raise it on direct
appeal. Alternatively, it was meritless due to the considerable evidence of
petitioner’s involvement in the alleged conspiracy. Instantly, petitioner alleges his
counsel was ineffective for not raising his claim on direct appeal. To the extent
petitioner raises arguments not before the Court initially, this does not warrant
relief under Rule 59(e). See Moro, 91 F.3d at 876. Further, as the Court has
previously discussed the frivolous nature of petitioner’s claim, his counsel was
clearly not ineffective for failing to raise it as a basis of appeal. Thus, petitioner
has not offered grounds warranting reconsideration of this Court’s previous
finding.
f. Ground Six
Petitioner’s sixth claim for relief alleged ineffective assistance of counsel for
failure to take witness depositions and call or impeach certain prosecution
witnesses. In its Order of denial, the Court addressed and discussed each of
petitioner’s alleged grievances. The Court refuses to regurgitate its reasoning
instantly. Suffice it to say, as petitioner merely re-states and expands upon his
dismissed claims, he has not offered grounds warranting reconsideration of the
Court’s conclusion.

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g. Ground Seven
Petitioner’s seventh claim again cited juror misconduct as warranting relief.
He stated the Court did not properly probe the issue of juror misconduct.
However, the Seventh Circuit previously held the Court did not abuse its
discretion in its handling of the juror misconduct issue. Thus, the Court refused
to review petitioner’s claim. Again, petitioner chooses to ignore the Seventh
Circuit’s binding decision on this matter, instead re-stating the factual basis of his
rejected argument. Thus, petitioner does not offer circumstances warranting
reconsideration of this Court’s judgment. Accordingly, as petitioner has not
presented a manifest error of law or newly discovered evidence, Cosgrove, 150
F.3d at 732, but merely, “rehash[es] previously rejected arguments,” Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.
1996), the Court DENIES his Rule 59(e) motion (Doc. 10).
IV.

CERTIFICATE OF APPEALABILITY

Further, because the Court is issuing a final order, it will also deny a
certificate of appealability as to the motion for reconsideration under Rule 59(e).
A certificate of appealability is required before a habeas petitioner may appeal an
unfavorable decision to the Seventh Circuit Court of Appeals. 28 U.S.C. § 2253(c);
FED. R. APP. P. 22(b). The Court denies a certificate of appealability, as reasonable
jurists would not debate that the denials of both petitioner’s Section 2255 motion
and his instant motion to reconsider are proper. See Slack v. McDaniel, 529 U.S.
473, 484 (2000) (stating, “a habeas prisoner must make a substantial showing of

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the denial of a constitutional right, a demonstration that, . . . reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were “adequate
to deserve encouragement to proceed further”) (citation and quotation marks
omitted). Thus, for the reasons stated above, in addition to the reasons recited in
this Court’s denial of petitioner’s Section 2255 motion, the Court DENIES a
certificate of appealability as to the Court’s instant denial of petitioner’s motion to
reconsider.
V. CONCLUSION
IT IS ORDERED that petitioner’s motion to reconsider is DENIED (Doc.
10). Further, the Court also DENIES a certificate of appealability as to the motion
for reconsideration.
IT IS SO ORDERED.
Signed this 11th day of December, 2012.

Digitally signed by
David R. Herndon
Date: 2012.12.11
09:20:56 -06'00'
Chief Judge
United States District Judge

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