Messenger v. McQuiggin

Filing 22

ORDER DENYING RECONSIDERATION re 15 Response filed by William Messenger (construed by the Court as a Motion for Reconsideration of Court's 13 Order Adopting the Report and Recommendation.) Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM M. MESSENGER,
Petitioner,
v.

No. 09-CV-13860

GREG McQUIGGIN,

Hon. Gerald E. Rosen

Respondent.
__________________________________/
ORDER DENYING RECONSIDERATION
This matter is before the Court on Petitioner William M. Messenger’s Response to the
Court’s Order Adopting the Magistrate Judge’s Report and Recommendation and Dismissing
Petitioner’s Habeas Corpus Petition. The Court construes Petitioner’s Response as a Motion for
Reconsideration, because Petitioner alleges that the Court incorrectly determined in its Order
Adopting the Magistrate Judge’s Report and Recommendation that Petitioner did not file a
timely objection to the Report and Recommendation. Petitioner claims that he filed a timely
objection to the Magistrate Judge’s Report and Recommendation on June 30, 2010, and even if
the Court overrules his objections, he is entitled to a certificate of appealability.
The Court has no record of any objections filed on or about June 30, 2010. Petitioner
has, however, filed two motions for a certificate of appealability in which he reiterates arguments
made in his habeas petition and addressed in the Magistrate Judge’s Report and
Recommendation.
The requirements for granting motions for reconsideration are set forth in Eastern District
of Michigan Local Rule 7.1(h), which provides in relevant part:

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, but 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 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
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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. 194), Pennsylvania
Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D. Pa. 1992)).
Petitioner has repeatedly made the same arguments, which the Court has already ruled
upon, either expressly or by reasonable implication. Furthermore, Petitioner has not shown a
“palpable defect” by which the Court has been misled. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Response to the Order Adopting the Report
and Recommendation [dkt. # 15], which the Court has construed as a Motion for
Reconsideration, is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED for the
reasons given by the Magistrate Judge in his June 15, 2010 Report and Recommendation.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: July 6, 2011

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I hereby certify that a copy of the foregoing document was served upon counsel of record on July
6, 2011, by electronic mail and upon William M. Messenger, #238127, Chippewa Correctional
Facility, 4269 W. M-80, Kincheloe, MI 49784 by ordinary mail.
s/Ruth A. Gunther
Case Manager

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