Borchert v. USA
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
UNITED STATES OF AMERICA,
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.
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.
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.
Borchert’s motion was filed within the 28-day window of Rule
Fed. R. Civ. P. 59(e).
To prevail on a motion to alter or
establish’ (1) that the court committed a manifest error of law or
fact, or (2) that newly discovered evidence precluded entry of
Blue v. Hartford Life & Accident Ins. Co., 698 F.3d
587, 598 (7th Cir. 2012) (quoting Harrington v. City of Chicago,
disappointment with a ruling does not equate to manifest error, and
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.
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
However, Borchert made the same argument in his section
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.)
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.
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-
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
Borchert has not presented any newly discovered evidence to
change this conclusion, or any manifest error in this Court’s
Borchert’s current motion therefore consists of a merit-based
attack on this Court’s previous finding.
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
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).
For the reasons set forth above, the “Motion to Alter Judgment
Under Fed. R. Civ. P. 59(e),” filed by Petitioner, Steven Borchert,
DATED: March 7, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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