Herrera v. Smith et al

Filing 10

MEMORANDUM ORDER. Petitioner's Motion to Alter or Amend Judgment 9 is DENIED. Signed by District Judge Ron Clark on 11/20/18. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JESSE HERRERA

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VS.

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WARDEN, RUFUS H. DUNCAN
GERIATRIC FACILITY

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CIVIL ACTION NO. 9:18-CV-21

MEMORANDUM ORDER
Pending before this Court is Petitioner’s Motion to Alter or Amend Judgment filed
November 16, 2018 (docket entry no. 9). Petitioner requests that the Memorandum Opinion and
Final Judgment entered October 18, 2018 be vacated (docket entry nos. 7 & 8).
Background
On March 5, 2018, the Magistrate Judge to whom this case was referred entered a Report and
Recommendation, recommending the petition for writ of habeas corpus be dismissed (docket entry
no. 2). Petitioner filed Objections to the Report and Recommendation on August 22, 2018 (docket
entry no. 6). After considering the objections, this Court entered a Memorandum Opinion and Order
Overruling the Objections on October 18, 2018 (docket entry no. 7). A Final Judgment was entered
the same day (docket entry no. 8).
Discussion
Petitioner filed a Motion to Alter or Amend Judgment. As the motion was filed within 28
days of entry of judgment, the motion is construed as a Motion for Reconsideration under Federal
Rule of Civil Procedure 59(e).
A motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure “calls into
question the correctness of the judgment” and “must clearly establish either a manifest error of law
or fact or must present newly discovered evidence.” See Templet v. Hydrochem, Inc., 367 F.3d 473,
478 (5th Cir. 2004) (quoting In re TransTexasGas Corp., 303 F.3d 571, 581 (5th Cir. 2002)); see
also Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (internal quotations omitted). District

Courts have been given considerable discretion over whether to grant or deny a motion for
reconsideration. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Moreover,
a Rule 59(e) motion “cannot be used to raise arguments which could, and should, have been made
before the judgment issued. Rosenzqeig v. Azurix Corp. 332 F.3d 854, 63-64 (5th Cir. 2003).
“Reconsideration of a judgment after its entry is an extraordinary remedy that should be used
sparingly.” Templet, 367 F.3d 479.
Petitioner re-urges the same arguments as presented in his Objections to the Report and
Recommendation of the Magistrate Judge.

As this Court previously stated in its

Memorandum Order, Petitioner cannot contest a state court conviction in a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Nor does this Court have authority to make some
determination regarding actions or inactions taken by the Fifth Circuit Court of Appeals. Petitioner
has demonstrated neither a manifest error of law or fact nor presented newly discovered evidence.
It is, therefore,
ORDERED that Petitioner’s Motion to Alter or Amend Judgment (docket entry no. 9) is
DENIED.
So ORDERED and SIGNED November 20, 2018.

____________________________
Ron Clark, Senior District Judge

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