Blumeyer v. Roal

Filing 33

ORDER denying 31 Motion for Reconsideration. Signed by Chief Judge David R. Herndon on 9/24/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ARTHUR A. BLUMEYER, III,
Petitioner,
v.
J.S. Walton,

Respondent.

Case No. 11-cv-1137-DRH-DGW
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Before the Court is petitioner Blumeyer’s motion to alter or amend
judgment pursuant to Rule 59(e), FEDERAL RULES

OF

CIVIL PROCEDURE (Doc. 31).

Blumeyer argues McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), “ushers in new
considerations that a district court must now apply when faced with actual
innocence claims.” He requests that this Court re-open judgment and transfer this
action to the Honorable Jean C. Hamilton of the Eastern District of Missouri, as
Judge Hamilton handled Blumeyer’s criminal action and is thus better acquainted
with the underlying proceedings than this Court. Respondent has filed an
opposition to Blumeyer’s motion (Doc. 32).
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 (7th Cir. 2007).
However, it is well-settled that it is improper “to advance arguments or theories
Page 1 of 3

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 Nationale de
Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
Blumeyer does not present an argument that compels this Court to re-open
this action. On May 28, 2013, three months prior to this Court’s denial of
Blumeyer’s petition, the Supreme Court issued its opinion in McQuiggin. In
McQuiggin, the Supreme Court held, “that actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the impediment is a
procedural bar, as it was in Schlup and House, or, as in this case, expiration of
the statute of limitations.” McQuiggin, 133 S. Ct. at 1928. McQuiggin does not
change the result in this case. For all the reasons stated in this Court’s Order
adopting

the

Magistrate

Judge’s

recommendations,

Blumeyer

has

not

demonstrated Section 2255 is, “inadequate or ineffective to test the legality of his
detention,” 28 U.S.C. § 2255(e), nor has he demonstrated a non-frivolous claim of
actual innocence.
Blumeyer further requests that this Court, upon re-opening this action,
transfer it to Judge Hamilton; the District Judge who presided over Blumeyer’s
criminal proceedings. Notably, Blumeyer attempted to bring his instant claims
under Section 2241; not Section 2255. Compare 28 U.S.C. § 2255(a) (“A prisoner

Page 2 of 3

may . . . move the court which imposed the sentence to vacate, set aside or correct
the sentence.”), with 28 U.S.C. § 2241; Moore v. Olson, 368 F.3d 757, 758 (7th
Cir. 2004) (proper venue for filing a Section 2241 petition is the district in which
the prisoner is confined).
Blumeyer has not presented a reason that would move this Court to re-open
his case. Even if he did, he has further failed to cite authority which would enable
this Court to transfer his action to Judge Hamilton.
Blumeyer’s motion to alter or amend judgment pursuant to Rule 59(e) is
DENIED (Doc. 31).
IT IS SO ORDERED.
Signed this 24th day of September, 2013.

David R.
Herndon
2013.09.24
11:47:47 -05'00'
Chief Judge
United States District Court

Page 3 of 3