McCoy v. USA
ORDER denying 49 Motion for Reconsideration. Signed by Judge David R. Herndon on 8/9/2017. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is McCoy’s Rule 60 motion to reopen plaintiff’s 28
U.S.C. § 2255 evidentiary hearing (Doc. 49). Based on the following, the Court
denies the motion as meritless.
On July 31, 2014, the Court held an evidentiary hearing on McCoy’s 28
U.S.C. § 2255 petition, orally denied with prejudice the petition and judgment was
entered (Docs. 22 & 24). McCoy filed his notice of appeal on August 6, 2014 (Doc.
26). On June 6, 2016, the Seventh Circuit issued its Mandate affirming the denial
of McCoy’s petition (Doc. 48).
Thereafter, on November 8, 2016, the Seventh
Circuit, in McCoy’s criminal case, United States v. McCoy, 11-30076-DRH, denied
McCoy’s motion for leave to file a second or successive motion for collateral review
Christopher McCoy has filed an application pursuant to 28 U.S.C. §
2244(b)(3), seeking authorization to file a successive motion to vacate
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under § 2255. McCoy would like to challenge his attorney’s
performance during his first § 2255 proceedings. Specifically, he
argues counsel should have made a claim under United States v.
Harden, 758 F.3d 886 (7th Cir. 2014) (the Federal Magistrates Act
does not authorize magistrate judges to accept guilty pleas). But even if
counsel during the § 2255 proceedings performed deficiently, that is
not a basis for authorization because the Constitution does not
guarantee counsel during collateral proceedings. In any case, §
2244(b)(1) bars authorization because the proposed claim is simply a
new legal theory in support of an old claim—that the magistrate judge’s
acceptance of his guilty plea was unauthorized by Federal Magistrates
Act. This court rejected that very argument when affirming the denial
of McCoy’s § 2255 motion.
United States v. McCoy, 11-30076-DRH, Doc. 49.
The Seventh Circuit has held that a motion challenging the merits of a
district court order will automatically be considered as having been filed pursuant
to either Rule 59(e) or Rule 60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994).
Different time-tables govern these motions.
standards also apply.
Rule 59(e) permits a court to amend a judgment only if the
movant demonstrates a manifest error of law or fact or presents newly discovered
evidence that was not previously available. See, e.g., Sigsworth v. City of Aurora,
487 F.3d 506, 511-12 (7th Cir. 2007).
Rule 60(b) permits a court to relieve a
party from an order or judgment based on such grounds as mistake, surprise or
excusable neglect by the movant; fraud or misconduct by the opposing party;
a judgment that is void or has been discharged; or newly discovered evidence that
could not have been discovered within the 28-day deadline for filing a Rule 59(b)
motion. However, the reasons offered by a movant for setting aside a judgment
under Rule 60(b) must be something that could not have been employed to obtain a
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reversal by direct appeal.
See, e.g., Bell v. Eastman Kodak Co., 214 F.3d 798, 801
(7th Cir. 2000).
Although both Rules 59(e) and 60(b) have similar goals of erasing the finality
of a judgment and permitting further proceedings, Rule 59(e) generally requires a
lower threshold of proof than does Rule 60(b). See Helm v. Resolution Trust Corp.,
43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City of Chicago, 2 F.3d 752,
760 (7th Cir. 1993) (distinguishing the “exacting standard” of Rule 60(b) from the
to alter or amend judgment under Rule 59(e) is to ask the court to reconsider
matters “properly encompassed in a decision on the merits.” Osterneck v. Ernst &
Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989).
Clearly, McCoy’s motion was filed well past the 28 day window for Rule 59(e),
thus Rule 60(b) governs. The Court finds that McCoy is not entitled to relief under
either standard. After reviewing the record again, the Court finds that McCoy
identifies no manifest error of law, newly discovered evidence, fraud, mistake, or
excusable neglect that dictates a different result.
His motion merely takes
umbrage with the Court’s previous ruling and rehashes old arguments that have
been addressed by the Court. In rendering this Memorandum and Order and the
oral Order dismissing without prejudice McCoy’s 28 U.S.C. § 2255 petition, the
Court examined the record and the case law submitted by the parties and remains
convinced of the correctness of its position.
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Thus, the Court denies McCoy’s
Accordingly, the Court DENIES the motion to reopen plaintiff’s 28 U.S.C. §
2255 evidentiary hearing (Doc. 49).
IT IS SO ORDERED.
Digitally signed by
Judge David R.
Signed this 9th day of August, 2017.
United States District Court
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