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Banks v. Wolfe

September 25, 2006

TIM L. BANKS, PETITIONER,
v.
JEFFREY WOLFE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Smith

MAGISTRATE JUDGE KEMP

OPINION AND ORDER

On August 8, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on petitioner's August 16, 2006, motion to amend judgment pursuant to Federal Rule of Civil Procedure 59, and his August 21, 2006, supplement to his motion to amend judgment and motion for a new trial. Doc. Nos. 31, 32. For the reasons that follow, petitioner's motions are DENIED.*fn1

Rule 59 of the Federal Rules of Civil Procedure provides:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

(b) Time for Motion. Any motion for a new trial shall be filed no later than 10 days after entry of the judgment.

(c) Time for Serving Affidavits. When a motion for new trial is based on affidavits, they shall be filed with the motion. The opposing party has 10 days after service to file opposing affidavits, but that period may be extended for up to 20 days, either by the court for good cause or by the parties' written stipulation. The court may permit reply affidavits.

(d) On Court's Initiative; Notice; Specifying Grounds. No later than 10 days after entry of judgment the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for a reason not stated in a motion, the court shall specify the grounds in its order.

(e) Motion to Alter or Amend Judgment. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment.

In his motion to amend judgment, petitioner again objects to the Magistrate Judge's Report and Recommendation. He argues that his requests for an evidentiary hearing and for discovery improperly were denied, and that his claims improperly were dismissed as procedurally defaulted or without merit. He complains that the Court failed to rule on claims eight and eleven of the petition, although such claims were dismissed as procedurally defaulted. See Report and Recommendation, at 18-19; Opinion and Order, at 3. Petitioner also again asserts that he is the victim of a fundamental miscarriage of justice. He states that he has new exculpatory evidence that calls into question the credibility of state witnesses; however, the exhibits attached in support of petitioner's motion appear to already have been made a part of the record before this Court. Motion to Alter or Amend Judgment, Doc. No. 31, at 5, and Exhibits to Motion to Alter or Amend Judgment.

Petitioner again argues that he was denied the right to confront witnesses by admission of the 911 tape at trial. In his supplemental motion to alter or amend judgment, petitioner again argues that the prosecutor knowingly elicited false testimony from prosecution witness Trey Horton regarding whether Horton had seen petitioner with a gun on the night in question. Petitioner also again argues that the prosecutor knowingly elicited false testimony from Michelle Stone.

As a threshold matter, this Court must determine whether petitioner's motion is properly construed as a successive petition under the Antiterrorism and Effective Death Penalty Act (AEDPA),*fn2 or whether the Court has jurisdiction to consider petitioner's motion under Federal Rule of Civil Procedure 59. See Post v. Bradshaw, 422 F.3d 419 (6th Cir. 2005). In Gonzalez v. Crosby, 125 S.Ct. 2641 (2005), the Supreme Court held that a 60(b) motion raising claims and arguments like those raised herein must be construed as a successive petition:

In some instances, a Rule 60(b) motion will contain one or more "claims." For example, it might straightforwardly assert that owing to "excusable neglect," Fed. Rule Civ. Proc. 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim. Cf. Harris v. United States, 367 F.3d 74, 80-81 (C.A.2 2004) (petitioner's Rule 60(b) motion sought relief from judgment because habeas counsel had failed to raise a Sixth Amendment claim). Similarly, a motion might seek leave to present "newly discovered evidence," Fed. Rule Civ. Proc. 60(b)(2), in support of a claim previously denied. E.g., Rodwell v. Pepe, 324 F.3d 66, 69 (C.A.1 2003). Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim. E.g., Dunlap v. Litscher, 301 F.3d 873, 876 (C.A.7 2002). Virtually every Court ...


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