Borchert v. USA

Filing 4

OPINION AND ORDER DISMISSING FOR LACK OF JURISDICTION the 3 MOTION to Alter Judgment filed by Steven Borchert. Signed by Judge Rudy Lozano on 3/7/17. (Copy mailed to pro se party)(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
STEVEN BORCHERT,
Defendant/Petitioner.

)
)
)
)
)
)
)
)
)

NO. 2:13-cr-81
2:16-cv-395

OPINION AND ORDER
This matter is before the Court on the “Motion to Alter
Judgment Under Fed. R. Civ. P. 59(e),” filed by Petitioner, Steven
Borchert, on February 8, 2017 (DE #96).

For the reasons set forth

below, the motion (DE #96) is DISMISSED FOR LACK OF JURISDICTION.

BACKGROUND
On January 31, 2017, this Court entered an opinion and order
denying Borchert’s motion under 28 U.S.C. § 2255, and declining to
issue a certificate of appealability.

(DE #94.)

In the current

motion to alter judgment under Federal Rule of Civil Procedure
59(e), Borchert rehashes the argument that he already made that he
did not file false tax returns because the IRS has not assessed any
tax due and owing.

DISCUSSION
Borchert’s motion was filed within the 28-day window of Rule
59(e).
amend

Fed. R. Civ. P. 59(e).
judgment

under

Rule

To prevail on a motion to alter or

59(e),

the

movant

“must

‘clearly

establish’ (1) that the court committed a manifest error of law or
fact, or (2) that newly discovered evidence precluded entry of
judgment.”

Blue v. Hartford Life & Accident Ins. Co., 698 F.3d

587, 598 (7th Cir. 2012) (quoting Harrington v. City of Chicago,
433

F.3d

542,

546

(7th

Cir.

2006)).

“A

losing

party’s

disappointment with a ruling does not equate to manifest error, and
Rule

59(e)

arguments.”

may

not

be

used

to

rehash

previously

rejected

Taylor v. United States, No. 15-cv-1087-MJR, 2017 WL

283379, at *2 (Jan. 23, 2017). Manifest error requires “wholesale
disregard, misapplication, or failure to recognize controlling
precedent” by the court.

Burritt v. Ditlefsen, 807 F.3d 239, 253

(7th Cir. 2015) (quoting Oto v. Metro. Life Ins. Co., 224 F.3d 601,
606 (7th Cir. 2000)).
Borchert has not presented any newly discovered evidence or
pointed to any manifest error of law or fact.

He merely rehashes

arguments he already made in his section 2255 petition.

For

example, Borchert currently claims the “IRS Account Transcripts
show there is no tax due and owing” so this Court’s decision was
incorrect because tax assessments have not yet been made. (DE #96
at 1.)

However, Borchert made the same argument in his section

2

2255 reply brief, citing the IRS audit evidence and arguing there
were “no assessments” due for any of the years that Borchert was
found guilty of filing false tax returns.

(DE #88 at 2-4.)

This

Court directly addressed this argument, and specifically rejected
Borchert’s argument that the documents he attached to his motion
and supplements showed that his tax loss was zero.

(DE #94 at 7.)

The Court went through the IRS audit documents, which showed that
the IRS audit mirrored the Court’s finding of a tax loss of
$524,445 for the years 2001-2009.

(Id.)

The Court specifically

found that Borchert misunderstood the documentation he submitted,
and it did not show that his tax returns were truthful.

(Id. at 7-

8.)
This Court found that Borchert’s section 2255 motion was
untimely, it was procedurally defaulted, and any claim that the tax
loss was miscalculated did not involve a constitutional error. (DE
#94.)

Borchert has not presented any newly discovered evidence to

change this conclusion, or any manifest error in this Court’s
ruling.
Borchert’s current motion therefore consists of a merit-based
attack on this Court’s previous finding.

Therefore, Borchert’s

motion to alter the judgment under Rule 59(e) is an unauthorized
successive motion within the meaning of section 2255, and the Court
has no jurisdiction to consider its merits.

See, e.g., Hare v.

United States, 688 F.3d 878, 880 (7th Cir. 2012); Curry v. United

3

States, 307 F.3d 664, 666 (7th Cir. 2002); Choiniere v. United
States, Nos. 3:07-cv-27 RM; 3:05-CR-56, 2009 WL 424768, at *1 (N.D.
Ind. Feb. 18, 2009); Collins v. United States, No. 98-cv-156-WDS,
2011 WL 4007581, at *3 (S.D. Ill. Sept. 8, 2011); Corbin v.
Indiana, No. 1:10-cv-886-TWP-TAB, 2010 WL 3119631, at *3-4 (S.D.
Ind. Aug. 5, 2010).

CONCLUSION
For the reasons set forth above, the “Motion to Alter Judgment
Under Fed. R. Civ. P. 59(e),” filed by Petitioner, Steven Borchert,
on

February

8,

2017

(DE

#96),

is

DISMISSED

FOR

LACK

JURISDICTION.

DATED: March 7, 2017

/s/ RUDY LOZANO, Judge
United States District Court

4

OF