Gorak v. Tatum et al

Filing 43

DECISION AND ORDER signed by Judge Pamela Pepper on 10/2/2015 DENYING 42 Petitioner's Motion for Reconsideration. (cc: all counsel; by US Mail to petitioner) (pwm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GREGORY SEAN GORAK,

Case No. 14-cv-1411-pp

Petitioner,
v.
ATTORNEY GENERAL OF THE STATE OF WISCONSIN,
and WARDEN MICHAEL MEISNER,
Respondents.

DECISION AND ORDER DENYING THE PETITIONER’S
MOTION FOR RECONSIDERATION (DKT. NO. 42)
_____________________________________________________________________________
On September 30, 2015, twenty-seven days after the court entered
judgment granting the respondents’ motion to dismiss Gregory Sean Gorak’s
petition for writ of habeas corpus under 28 U.S.C. §2254, the petitioner filed a
motion for reconsideration pursuant to Fed. R. Civ. P. 59. Dkt. No. 42. For the
reasons stated below, the court will deny the motion.
Rule 59(e) allows a party to file “[a] motion to alter or amend a judgment .
. . no later than 28 days after entry of judgment.” The petitioner has timely filed
his motion. To prevail on a motion under Rule 59(e), the moving party must
“demonstrate a manifest error of law or present newly discovered evidence” that
merits reconsideration of the judgment. Obriecht v. Raemisch, 517 F.3d 489,
494 (7th Cir. 2008). “A ‘manifest error’ is not demonstrated by the
disappointment of the losing party. It is the ‘wholesale disregard,
misapplication, or failure to recognize controlling precedent.’” Oto v. Metro. Life

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Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F.
Supp. 1063, 1069 (N.D. Ill. 1997)). A motion for reconsideration “is not an
appropriate forum for rehashing previously rejected arguments . . . .” Caisse
Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.
1996). Whether to grant a motion for reconsideration “is left to the discretion of
the district court.” Id.
In its September 1, 2015 decision and order, the court held that the
petitioner procedurally defaulted on his constitutional claims, because he did
not give the state court a full and fair opportunity to review the claims. Dkt.
No. 40 at 24. Specifically, the court found that the petitioner did not appeal
critical orders, and did not demonstrate cause for that failure, nor did he show
prejudice attributable to the default. Id. at 26. The court’s analysis focused on
the petitioner’s arguments that the state court had illegally split his sentence,
that his sentence violated State v. Bagnall, 61 Wis.2d 297 (Wis. 1973), and
whether the state and federal sentences would run consecutively or
concurrently. Id. at 1-20.
The petitioner’s September 30, 2015 motion states that, “Pursuant to
federal case law, [the petitioner] was not required to appeal the circuit court’s
decisions in order to satisfy the exhaustion requirements . . . .” Dkt. No. 42 at
3. He cites no case law to support this proposition. He refers to several
authorities describing the circumstances under which an aggrieved party may
file for post-conviction, or habeas, relief, but does not indicate how these

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authorities support his claim that he was not required to appeal the orders he
argues were unconstitutional. Id. at 3-5.
The motion rehashes the petitioner’s arguments that the state court
illegally split his sentence. He begins by pointing to “technical errors contained
in the decision that require correction,” but does not cite any rule or case law
requiring the court to change its ultimate decision as a result of these technical
errors. Id. at 2-3. He continues to argue that no law “required” him “to appeal
the circuit court’s decisions in order to satisfy the exhaustion requirement,”
using the same arguments and cases cited in the brief in support of his
petition. Id. at 3-11. He takes issue with the court’s determination “that neither
party provided the court with the original, un-amended [June 8, 2007]
judgment of conviction (JOC).” Id. at 11. He asserts that the court went
“through such pains . . . to express that when considering the original . . .
judgment.” Id. The form of the court’s decision and the use of certain
documents to support its opinion is not a ground for vacating or altering a
judgment under Rule 59. Despite the court’s lengthy analysis of the state-court
proceedings and the associated case law, the petitioner argues that “the court
apparently does not understand the fact that [Wisconsin] has enacted a bifurcated [sic] ‘determinate sentence structure.’” Id. at 16.
The petitioner’s efforts to re-argue what he argued in his original habeas
petition demonstrate that the reason he asks the court to reconsider is because
he does not agree with the outcome of the court’s decision, which is not a
reason for granting a motion for reconsideration under Rule 59. Finally, the
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petitioner asserts that the court abused its discretion when it “decide[d] the
motion to dismiss based upon the incomplete record supplied by the
respondent.” Id. at 21. Despite this argument, the petitioner does not point to
any specific documents that the court should have considered or that he has
obtained “newly discovered” since the court entered its judgment on September
3, 2015.
Because the petitioner’s September 30, 2015 motion does not
demonstrate a manifest error of law—“wholesale disregard, misapplication, or
failure to recognize controlling precedent”—or newly-discovered evidence, the
court DENIES the petitioner’s motion for reconsideration (Dkt. No. 42) in its
entirety.
Dated at Milwaukee, this 2nd day of October, 2015.

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