Collier v. USA

Filing 24

ORDER denying 23 Motion for Reconsideration. Further, the Court also DENIES a certificate of appealability as to the motion for reconsideration. Signed by Chief Judge David R. Herndon on 03/28/2014. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTIMUS A. COLLIER,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Civil Case No. 10-cv-979
Criminal Case No. 09-cr-30076

Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
I.

Introduction

This matter comes before the Court on petitioner Artimus Collier’s motion
for reconsideration pursuant to FEDERAL RULES OF CIVIL PROCEDURE 59(e) from the
Court’s order denying his 28 U.S.C. § 2255 petition (Doc. 23). For the following
reasons, the Court DENIES petitioner’s motion.
II.
The FEDERAL RULES

OF

Law and Application
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).
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Instantly, petitioner filed his motion within 28 days of the entry of the challenged
Order pursuant to the prisoner mailbox rule. 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”); Rule 3(d) of the Rules Governing § 2255 Cases.
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”)).

As

petitioner purportedly challenges the Court’s substantive application of law, the
Court treats his motion as one under Rule 59(e).

See Obriecht, 517 F.3d at

493-94.
A motion for reconsideration serves the limited function of allowing a court to
correct manifest errors of law or fact or to present newly-discovered evidence. See
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th
Cir. 1996); see also Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d
557, 561 (7th Cir. 1985). Thus, Rule 59(e) allows a court to alter or amend a
previous order only if the movant demonstrates a manifest error of law or presents
newly discovered evidence. Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
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(7th Cir. 2007).

However, it is well-settled that it is improper “to advance

argument or theories that could and should have been made before the district
court rendered a judgment.” Id. (citing LB Credit Corp. v. Resolution Trust Corp.,
49 F.3d 1263, 1267 (7th Cir. 1995)). Accordingly, “[r]econsideration is not an
appropriate forum for rehashing previously rejected arguments or arguing matters
that could have been heard during the pendency of the previous motion.” Caisse,
90 F.3d at 1270.
Petitioner instantly asserts that the Court failed to properly adjudicate the
merits of his Fifth Amendment claim under Alleyne and his Fourth amendment
claim in light of Bailey. Alleyne v. United States, 133 S.Ct. 2151 (2013); Bailey
v. United States, 133 S.Ct. 1031 (2013). Specifically, petitioner asserts that the
Court incorrectly relied on Simpson, a decision manifesting from the filing of a
second and successive motion. Simpson v. United States, 721 F.3d 875 (7th Cir.
2013). Instead, he argues, the standard of determining retroactivity starts first
with the district court.

He then goes on to address claims he has previously

presented to the Court, namely that he is entitled to resentencing under Aprendi
and Alleyne. He also asserts that the Court incorrectly decided petitioner’s Fourth
Amendment claims under Bailey, reducing the decision to a footnote.
Collier’s motion misses the mark. The Court’s reliance on Simpson is not
predicated on whether the petitioner in that case had filed his first or second
collateral attack. The Court cites to Simpson because in it the Seventh Circuit
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indicates that Alleyne is not to be applied retroactively. See Simpson, 721 F.3d at
876.

Next, Collier asserts that the Court improperly adjudicated the issue of

Bailey in a footnote.

Whether the Court addresses the issue in the manner

petitioner prefers is irrelevant.

The bottom line is that the Court thoroughly

reviewed the record and determined that petitioner did not overcome the waiver
provision in his plea agreement. The remainder of petitioner’s motion improperly
addresses issues already addressed by this Court. Thus, as petitioner has not
presented a manifest error of law or newly discovered evidence, Sigsworth, 487
F.3d at 511-12, the Court DENIES his motion for reconsideration (Doc. 23).
Further, because the Court issues a final order, it will also deny a certificate
of appealability as to the motion for reconsideration. 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 petition and his instant motion to
reconsider are proper. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus,
for the reasons stated above, in addition to the reasons recited in this Court’s denial
of petitioner’s Section 2255 petition, the Court DENIES a certificate of appealability
as to the Court’s instant denial of petitioner’s motion to reconsider.

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III.

Conclusion

Accordingly, petitioner’s motion to reconsider (Doc. 23) is DENIED.
Further, the Court also DENIES a certificate of appealability as to the motion for
reconsideration.
IT IS SO ORDERED.
Signed this 28th day of March, 2014.

Digitally signed by
David R. Herndon
Date: 2014.03.28
04:34:16 -05'00'
Chief Judge
United States District Court

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