Powers v. USA
ORDER denying 5 Motion for Reconsideration. IT IS FURTHER ORDERED that the Court declines to issue a certificate of appealability. Signed by District Judge Martin Reidinger on 10/14/13. (Pro se litigant served by US Mail.)(emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:12-cv-00071-MR
[CRIMINAL CASE NO. 2:93-cr-00019-MR-1]
GRADY WILLIAM POWERS,
UNITED STATES OF AMERICA, )
THIS MATTER comes before the Court on Petitioner’s Motion for
Reconsideration [Doc. 5].
Petitioner is serving a 480-month sentence after being convicted of
engaging and attempting to engage in a sexual act with a minor under the
age of twelve, in violation of 18 U.S.C. § 2241(c). On or around August 16,
2012, Petitioner filed a motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255, in which he claimed that he was entitled to relief
under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).
September 6, 2013, this Court denied and dismissed Petitioner’s motion to
vacate as a successive petition.1 [Doc. 3].
On September 19, 2013, Petitioner filed the pending motion for
reconsideration, which is in the nature of a motion to alter or amend the
prior judgment of the Court under Rule 59(e) of the Federal Rules of Civil
STANDARD OF REVIEW
With regard to motions to alter or amend a judgment under Rule
59(e), the United States Court of Appeals for the Fourth Circuit has stated:
A district court has the discretion to grant a Rule 59(e) motion
only in very narrow circumstances: “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error of
law or to prevent manifest injustice.”
Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (quoting Collison v. Int’l
Chem. Workers Union, 34 F.3d 233, 236 (4th Cir. 1994)). Furthermore,
“Rule 59(e) motions may not be used to make arguments that could have
been made before the judgment was entered.”
circumstances under which a Rule 59(e) motion may be granted are so
limited that “[c]ommentators observe ‘because of the narrow purposes for
which they are intended, Rule 59(e) motions typically are denied.’”
The Court also noted that the petition was untimely and further without merit because
Simmons does not even apply to Petitioner.
Woodrum v. Thomas Mem’l Hosp. Found., Inc., 186 F.R.D. 350, 351 (S.D.
W. Va. 1999) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
Petitioner has not shown the existence of the limited circumstances
under which a Rule 59(e) motion may be granted. That is, Petitioner’s
motion does not present evidence that was unavailable when he filed his
motion to vacate, nor does his motion stem from an intervening change in
the applicable law. Furthermore, Petitioner has not shown that a clear error
of law has been made, or that failure to grant the motion would result in
manifest injustice to him. See Hill, 277 F.3d at 708. In sum, the Court will
deny Petitioner’s motion for reconsideration.
Based on the foregoing, the Court concludes that Petitioner’s Motion
for Reconsideration will be denied.
The Court finds that the Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (in order to satisfy § 2253(c), a “petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong”) (citing Slack
v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542
Petitioner has failed to demonstrate both that this Court’s
dispositive procedural rulings are debatable, and that his Motion to Vacate
states a debatable claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
As a result, the Court declines to issue a certificate of appealability. See
Rule 11(a), Rules Governing Section 2255 Proceedings for the United
States District Courts, 28 U.S.C. § 2255.
IT IS, THEREFORE, ORDERED that Petitioner’s Motion for
Reconsideration [Doc. 5] is DENIED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: October 14, 2013
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