Niemiec v. Burt

Filing 47

OPINION AND ORDER denying petitioner's 43 Motion to Alter or Amend Judgment and 44 Motion for New Trial. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DAVID NIEMIEC,
Petitioner,

Case Number: 2:13-CV-10180
HON. GEORGE CARAM STEEH

v.
SHERRY BURT,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER’S MOTION
TO ALTER OR AMEND JUDGMENT AND MOTION FOR NEW TRIAL
Petitioner John Niemiec filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The Court denied the petition on February
11, 2016 (ECF No. 41). Now before the Court are Petitioner’s Rule 59(e)
Motion to Alter and Amend (ECF No. 43) and Motion for New Trial (ECF
No. 44).
The disposition of a motion filed under Rule 59(e) is “entrusted to the
court’s sound discretion.” Keweenaw Bay Indian Community v. United
States, 940 F. Supp. 1139, 1140 (W.D. Mich. 1996), citing Huff v.
Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982). Generally, a
court may grant a Rule 59(e) motion in one of three situations: (1) to
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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). However, a motion filed under 59(e) “‘may not be used to
relitigate old matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.’” Exxon Shipping Co. v.
Baker, 554 U.S. 471, 486 n.5 (2008), quoting 11 C. Wright & A. Miller,
Federal Practice and Procedure § 2810.1 pp. 127-128 (2d ed. 1995). “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).
Petitioner raised twenty claims for relief in his petition. He argues
that the Court erred in its disposition of one of those claims, that the
prosecutor committed misconduct by improperly defining the law in opening
and closing arguments. He claims that the Court acknowledged that the
prosecutor committed misconduct in this regard, but then failed to further
address the issue or provide relief on that basis. Petitioner’s motion at 3,
ECF No. 43, Pg. ID 3454. Contrary to Petitioner’s assertion, the Court did
not find that the prosecutor committed misconduct. The Court considered

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and denied all of Petitioner’s prosecutorial misconduct claims. Nothing in
Petitioner’s motion establishes that the Court’s decision was in error. Thus
Petitioner is not entitled to relief under Rule 59(e).
Also before the Court is Petitioner’s Motion for a New Trial, filed
under 59(a) and (d). Rule 59 is inapplicable because it sets forth the
grounds for granting a new trial after a trial is held in the district court – a
circumstance not implicated here because no trial was held.
Accordingly, Petitioner’s Motion to Alter or Amend Judgment (ECF
No. 43) and Motion for New Trial (ECF No. 44) are DENIED.
SO ORDERED.
Dated: February 23, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 23, 2017, by electronic and/or ordinary mail and also
on John Niemiec, 32038 Williamsburg Dr.,
St. Clair Shores, MI 48082
s/Barbara Radke
Deputy Clerk

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