BERRY v. SESSIONS

Filing 7

ORDER Denying Motion to Alter or Amend Judgment 6 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DUANE LETROY BERRY,
Petitioner,
CASE NO. 2:18-CV-11678
HONORABLE DENISE PAGE HOOD

v.
JEFF SESSIONS and
SCOTT STEPHENSON,
Respondents.
____________________________/

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
This matter is before the Court on Petitioner’s motion to alter or amend
judgment concerning the Court's dismissal of his pro se habeas petition, which he
brought pursuant to 28 U.S.C. § 2241.
Petitioner’s motion must be denied. First, to the extent that he seeks
reconsideration of the Court’s decision under Federal Rule of Civil Procedure
59(e), he is not entitled to relief. A motion for reconsideration which presents
issues already ruled upon by a district court, either expressly or by reasonable
implication, will not be granted. Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D.
Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967 F. Supp. 951, 952 (E.D.

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Mich. 1997). Petitioner raises such issues in his motion. The Court properly
dismissed the petition because his federal criminal charges are pending and his
issue (or issues) must be exhausted at trial and on direct appeal before he seeks
federal habeas relief – as explained in the dismissal order. Petitioner fails to meet
his burden of showing a palpable defect by which the Court has been misled or his
burden of showing that a different disposition must result from a correction thereof,
as required by Local Rule 7.1(h)(3).
Second, Petitioner is not entitled to relief under Federal Rule of Civil
Procedure 60(b). Under that rule, a court will grant relief from a final judgment or
order only upon a showing of one of the following reasons:

(1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgement that has been reversed or otherwise vacated; or
applying it prospectively is not longer equitable; or (6) any other reason that
justifies relief. Fed. R. Civ. P. 60(b). Petitioner makes no such showing. His claim
that the federal court lacks jurisdiction to enforce 18 U.S.C. § 1038(a) (or that the

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prosecution lacks authority to prosecute) would be dispositive of his pending
federal criminal charge. The Court thus properly dismissed without prejudice the
habeas petition as premature. Accordingly, the Court DENIES Petitioner’s motion.
This case remains closed.
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 30, 2018
I hereby certify that a copy of the foregoing document was served upon
counsel of record on August 30, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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