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Lewis v. United States

February 16, 2007

LEON CURTIS LEWIS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Smith

MAGISTRATE JUDGE KEMP

OPINION AND ORDER

On September 7, 2006, the Court sustained petitioner's objection to construing the June 27, 2006, motion for correction of illegal sentence pursuant to Federal Rule of Criminal Procedure 35 as a successive petition under 28 U.S.C. §2255, and dismissed petitioner's Rule 35 motion.*fn1 Doc. No. 90. This matter is before the Court on petitioner's September 25, 2006, request for extension of time to file a motion for reconsideration, Doc. No. 92, and motion for reconsideration of the dismissal of his Rule 35 motion. Doc. No. 91. For the reasons that follow, petitioner's request for an extension of time to file a motion for reconsideration and his request for reconsideration of the September 7, 2006, dismissal of his Rule 35 motion, Doc. Nos. 91, 92, are DENIED.

Petitioner states that his motion for extension of time is filed under Federal Rule of Appellate Procedure 4(b)(4), which provides:

Upon a finding of excusable neglect or good cause, the district court may--before or after the time has expired, with or without motion and notice--extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

However, petitioner has not filed a notice of appeal, nor does it appear that he is requesting an extension of time to do so. Rather, his pleadings appear to indicate that he is requesting an extension of time to file his motion for reconsideration, presumably made pursuant to Federal Rule of Civil Procedure 59(e), which 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.

Petitioner states that he was transferred to a different prison facility on August 29, 2006, and did not receive a copy of the order dismissing his Rule 35 motion until September 19, 2006. Petitioner states that, on September 3, 2006, he notified the Court of his change of address; however, the docket does not reflect that any notification of new address has been filed. Motion for Extension of Time, Doc. No. 92.

In any event, this Court is without the authority to extend the time to file a motion for reconsideration under Federal Rule of Civil Procedure 59. Federal Rule of Civil Procedure 6(b); Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2nd Cir. 2000); Rhoden v. Campbell, 153 F.3d 773 (6th Cir. 1998). This Court dismissed petitioner's Rule 35 motion on September 7, 2006.

Therefore, excluding weekends,*fn2 petitioner's motion for reconsideration under Federal Rule of Civil Procedure 59, was due on September 21, 2006. His motion for ...


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