Zweigart v. United States of America

Filing 11

MEMORANDUM AND ORDER, denying 10 MOTION for Reconsideration re 9 Judgment, 8 Memorandum & Opinion filed by Steven A. Zweigart, II. Signed by Judge J. Phil Gilbert on 4/28/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN A. ZWEIGART, II,
Petitioner,
v.

Civil No. 14-cv-944-JPG

UNITED STATES OF AMERICA,

Criminal No. 12-cr-40103-JPG-001

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Steven A. Zweigart, II’s motion for
reconsideration (Doc. 10) of the Court’s order and judgment (Docs. 8 & 9) denying his motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court considers his motion
as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e).1 Where a
substantive motion for reconsideration is filed within 28 days of entry of judgment and asserts a ground
for relief under Rule 59(e), the Court will construe it as a motion pursuant to Rule 59(e); motions
asserting grounds for relief under Rule 60(b) or later motions will be construed as pursuant to Rule 60(b).
See Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (motions filed within Rule 59(e) period
construed based on their substance, not their timing or label); Mares v. Busby, 34 F.3d 533, 535 (7th Cir.
1994).
Under Rule 59(e), a court has the opportunity to consider newly discovered material evidence or

Because Zweigart filed his motion before the time to appeal had run and advanced no new
arguments in it, it is not considered to be a successive petition, and the Court has jurisdiction to consider
it. See Thomas v. United States, 328 F.3d 305, 307 (7th Cir. 2003); Johnson v. United States, 196 F.3d
802, 805 (7th Cir. 1999). “A timely request for reconsideration is a motion in the original case, not a
disguised effort to start a new case.” Thomas, 328 F.3d at 307. The Supreme Court in Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005), did not alter this rule. Gonzalez spoke of Rule 60(b) motions that
challenged a final judgment, but judgments that are still appealable have not yet become final and do not
yet “count” as a first proceeding for the § 2255 count. Johnson, 196 F.3d at 805.
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intervening changes in the controlling law or to correct its own manifest errors of law or fact to avoid
unnecessary appellate procedures. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); see
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006). It “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.” Moro, 91 F.3d at 876. Rule 59(e) relief is only available if the movant clearly
establishes one of the foregoing grounds for relief. Harrington, 433 F.3d at 546 (citing Romo v. Gulf
Stream Coach, Inc., 250 F.3d 1119, 1122 n. 3 (7th Cir. 2001)).
In Zweigart’s motion for reconsideration, he claims the Court misunderstood his argument,
which was that “[t]he sentencing court erred legally by relying solely on the PSR and plea agreement to
make a factual determination that Mr. Zweigart’s Illinois Domestic Battery conviction was a qualifying
predicate offense” for career offender purposes. Pet.’s Mot. at 3. Contrary to Zweigart’s assertion, the
Court fully understood his argument and concluded, after consulting the original documents regarding
Zweigart’s conviction, that he did not suffer prejudice from any counsel error. That is, even if counsel
had demanded the original documents regarding his domestic battery conviction early in the case and
presented them to the Court at sentencing, the result would have been the same.
Because Zweigart has not said anything justifying altering or amending the judgment under Rule
59(e) or the Court’s decision not to issue a certificate of appealability, the Court DENIES his motion
(Doc. 10).
IT IS SO ORDERED.
DATED: April 28, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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