Merriweather v. Hofbauer

Filing 114

ORDER denying Petitioner's 111 Motion for Reconsideration and denying as moot Petitioner's 112 Motion to Stay Ruling on 111 Motion for Reconsideration. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM A. MERRIWEATHER,
Petitioner,

No. 99-cv-75306
Hon. Gerald E. Rosen

vs.
BONITA J. HOFFNER, Warden,
Respondent.
___________________________/

ORDER DENYING PETITIONER’S MOTION FOR
RECONSIDERATION AND DENYING AS MOOT PETITIONER’S
MOTION TO STAY RULING ON MOTION FOR RECONSIDERATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on January 13, 2017
PRESENT: Honorable Gerald E. Rosen
United States District Judge
On March 29, 2016, Petitioner Merriweather filed a Motion for Reconsideration
of the Court’s denial of his earlier-filed Nunc Pro Tunc Application for an Order
directing that the Court’s denial of Petitioner’s January 25, 2001 Motion for an
Evidentiary Hearing be explicitly set forth in a docket entry. That same date, March 29,
2016, Petitioner filed a Motion asking that the Court hold ruling on the Motion for
Reconsideration in abeyance pending his pursuit of an appeal of any denial of his
contemporaneously-filed Motion for Recusal to the Chief Judge.
The decisions of District Judges, however, may not be appealed to the Chief Judge
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of the District Court; appeal may only be taken before the Sixth Circuit Court of
Appeals. Therefore, Petitioner Merriweather’s Motion to hold decision on Motion for
Reconsideration in Abeyance [Dkt. # 112] is DENIED as moot.
The requirements for the granting of motions for reconsideration are set forth in
Eastern District of Michigan Local Rule 7.1(h), which, in relevant part, provides:
Generally, and without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable defect by
which the court and the parties and other persons entitled to be heard on the
motion have been misled but also show that correcting the defect will result
in a different disposition of the case.
L.R. 7.1(h)(3).
Therefore, in order to prevail on a motion for reconsideration, the movant must not
only demonstrate a palpable defect by which the Court has been misled, he must also
show that a different disposition of the case must result from a correction of that defect.
A “palpable defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.”
United States v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). Moreover, a
motion that merely presents the same issues already ruled upon by the Court -- either
expressly or by reasonable implication -- will not be granted. L.R. 7.1(h)(3); see also
Flanagan v. Shamo, 111 F. Supp. 2d 892, 894 (E.D. Mich. 2000).
Fed. R. Civ. P. 59(e) also may be used as a vehicle for seeking reconsideration of a
court’s prior ruling. Generally, there are three situations which justify reconsideration

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under Rule 59(e): (1) to correct a clear error of law; (2) to account for newly discovered
evidence; (3) to accommodate an intervening change in controlling law; or (4) to prevent
manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005); see
also GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
However, like the Local Rule, motions under Rule 59(e) “are not intended as a vehicle to
relitigate previously considered issues; should not be utilized to submit evidence which
could have been previously submitted in the exercise of reasonable diligence; and are not
the proper vehicle to attempt to obtain a reversal of a judgment by offering the same
arguments previously presented.” Kenneth Henes Special Projects Procurement v.
Continental Biomass Industries, Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000). “A
motion to alter or reconsider a judgment is an extraordinary remedy and should be granted
sparingly.” Plaskon Elec. Materials, Inc. v. Allied-Signal, Inc., 904 F. Supp. 644, 669
(N.D. Ohio 1995); United States v. Limited, Inc., 179 F.R.D. 541, 547 (S.D. Ohio 1998)
(citing Sussman v. Salem, Saxon & Nielsen, P.A ., 153 F.R.D. 689, 694 (M.D. Fla. 1994),
Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D. Pa.1992)).
By application of the foregoing authorities, the Court will deny Plaintiff’s Motion
for Reconsideration.

Plaintiff’s motion merely presents the same issues already ruled

upon by the Court, either expressly or by reasonable implication. Furthermore, Plaintiff
has not shown a “palpable defect” by which the Court has been misled.
Therefore,

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IT IS HEREBY ORDERED that Petitioner’s Motion for Reconsideration [Dkt. #
111] is DENIED.
Before Petitioner may appeal from this Order, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability
may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make the required showing, the movant
must show that reasonable jurists could debate whether the matter could have been
resolved differently or whether the claims raised deserved further review. Johnson v.
Bell, 605 F.3d 333, 339 (6th Cir. 2010). The court concludes that jurists of reason would
not find the Court’s denial of Merriweather’s Motion for Recusal debatable. The Court
also will also deny Petitioner permission to appeal in forma pauperis because any appeal
would be frivolous. Accordingly,
IT IS FURTHER ORDERED that a certificate of appealability and
permission to appeal in forma pauperis are DENIED.

s/Gerald E. Rosen
United States District Judge
Dated: January 13, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on January 13, 2017, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]
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