Wilburn v. Terris

Filing 8

ORDER DENYING THE MOTION TO ALTER OR TO AMEND JUDGMENT [#7]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY D. WILBURN, SR.,
Petitioner,
Civil Action 2:15-CV-11453
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT

v.

J.A. TERRIS,
Respondent,
_______________________________/
ORDER DENYING THE MOTION
TO ALTER OR TO AMEND JUDGMENT [#7]
This Court summarily denied the petition for writ of habeas corpus that had been filed by
petitioner pursuant to 28 U.S.C. § 2241 on April 30, 2015. The Court determined that petitioner was
not entitled to seek habeas relief from his sentence enhancement under the Armed Career Criminal
Act because his sole federal post-conviction remedy for seeking relief was by filing a motion to
vacate sentence under 28 U.S.C. § 2255 and petitioner failed to show that his remedy under this
statute was inadequate or ineffective. Wilburn v. Terris, No. 15-CV-11453, 2015 WL 1966533 (E.D.
Mich. Apr. 30, 2015).
Petitioner has filed a motion to alter or amend judgment. For the reasons that follow, the
motion to alter or to amend judgment is DENIED.
A motion to alter or amend judgment brought by a habeas petitioner pursuant to Rule 59(e)
may properly be analyzed as a motion for reconsideration pursuant to Local Rule 7.1 of the Eastern
District of Michigan. Hence v. Smith, 49 F. Supp.2d 547, 550 (E.D. Mich. 1999). Local Rule 7.1
(h) allows a party to file a motion for reconsideration. E.D. Mich. L.R. 7.1(h). However, a motion
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for reconsideration which presents the same issues already ruled upon by the court, either expressly
or by reasonable implication, will not be granted. Hence, 49 F. Supp.2d at 551-53; see also
Flanagan v. Shamo, 111 F. Supp. 2d 892, 894 (E.D. Mich. 2000). The movant shall not only
demonstrate a palpable defect by which the Court and the parties have been misled but also show
that a different disposition of the case must result from a correction thereof. A palpable defect is
a defect that is obvious, clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F. Supp. 426,
427 (E.D. Mich. 1997).
Petitioner is merely attempting to re-hash arguments that he previously raised in his original
habeas petition in support of his assertion that he was entitled to seek habeas relief from his sentence
enhancement under the Armed Career Criminal Act. The Court will therefore deny petitioner’s
motion for reconsideration because petitioner is merely presenting issues which were already
expressly ruled upon by this Court when the Court summarily denied his habeas application. See
Hence, 49 F. Supp. 2d at 551-53.
IT IS HEREBY ORDERED that the motion to alter or amend a judgment [Dkt. # 7] is
DENIED.
/s/Gershwin A Drain
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: June 4, 2015

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