United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
7, 2019, the Court denied petitioner's motion for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On May 16th,
petitioner filed a document entitled “Objection to the
Magistrate Judge's Recommended Disposition.” The
Court exercised jurisdiction over this matter pursuant to 28
U.S.C. § 636(c) after obtaining the consent of the
parties and issued a final order rather than a Report and
Recommendation to a district judge. Accordingly, the Court
deems petitioner's filing to be a motion for
reconsideration. Respondent has not filed a response.
“motion to reconsider” is not explicitly
contemplated by the Federal Rules of Civil Procedure but can
be addressed as arising under Rule 59(e) or 60(b).
Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.
2006); Broadway v. Norris, 193 F.3d 987, 989 (8th
Cir. 1999); see also Harris v. United States, No.
4:18-CV-1546-JAR, 2018 WL 6305593, at *1 (E.D. Mo. Dec. 3,
2018) (motion to reconsider “can be considered the
functional equivalent of a motion under either Rule 59(e) or
60(b)”). Rule 59(e) motions serve the limited function
of correcting manifest errors of law or fact or to present
newly discovered evidence, and allow a court to correct its
own mistakes in the time immediately following judgment.
Id. (citing Innovative Home Health
Care, Inc. v. P.T.-O.T. Associates of the Black Hills,
141 F.3d 1284, 1286 (8th Cir. 1998)). Rule 59(e) motions
cannot be used to relitigate old matters or to raise new
arguments, tender new legal theories, or present evidence
that could have been offered or raised before the entry of
judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471,
486 n.5 (2008). A Rule 59(e) motion “is not intended to
routinely give litigants a second bite at the apple, but to
afford an opportunity for relief in extraordinary
circumstances.” Barnett v. Roper, 941
F.Supp.2d 1099, 1104 (E.D. Mo. 2013) (internal quotation
marks and citation omitted) (emphasis in original). Rule
60(b) allows a court to “relieve a party from a final
judgment for, among other reasons, mistake, inadvertence,
surprise, or excusable neglect.” MIF Realty L.P. v.
Rochester Associates, 92 F.3d 752, 755 (8th Cir. 1996).
Rule 60(b) provides for “extraordinary relief which may
be granted only upon an adequate showing of exceptional
circumstances.” U.S. Xpress Enterprises, Inc. v.
J.B. Hunt Transport, Inc., 320 F.3d 809, 815 (8th Cir.
forth in the Memorandum and Order entered on May 7, 2019
[Doc. # 22], petitioner was one of several friends gambling
in a private home in the early morning hours of October 23,
2010. Following a physical confrontation with Kelvin Nelson,
petitioner made verbal threats and then drove away. He
returned a few minutes later with a firearm. He opened the
front door and began shooting at Nelson, hitting him in the
arm and stomach. He then left the residence. A jury convicted
petitioner of first-degree assault, first-degree burglary,
and two counts of armed criminal action. He was sentenced to
a total of 20 years in prison.
asserted five claims in his habeas corpus petition: (1) the
trial court erred in refusing his proffered instruction on
the lesser-included offense of second-degree assault; (2)
there was insufficient evidence to convict him of
first-degree burglary; (3) the trial court erred in denying
the State's motion to disqualify defense counsel due to a
conflict of interest; (4) trial counsel rendered ineffective
assistance by failing to call an alibi witness; and (5) trial
counsel failed to obtain a waiver of the conflict of
interest. The Court found that the claims presented in
Grounds 3 and 5 were procedurally defaulted and that
petitioner failed to establish that he was entitled to relief
on the remaining claims.
careful consideration of petitioner's present motion, the
Court finds there was no manifest error of law or fact. To
the extent that petitioner relies on arguments already
considered and rejected by the Court, he is not entitled to
relief under Rules 59(e) or 60(b). Equally unavailing are his
efforts to set aside procedural default by asserting for the
first time that post-conviction counsel was ineffective.
Finally, petitioner submits for the first time police reports
to support his contention that he did not illegally enter the
home and therefore did not commit first-degree burglary.
These exhibits were available to him at the time he filed
this case and thus do not constitute new evidence for the
purposes of his motion.
IT IS HEREBY ORDERED that petitioner's
“Objection to the Magistrate Judge's Recommended
Disposition, ” deemed to be a ...