United States District Court, S.D. Ohio, Eastern Division
Elizabeth P. Deavers Chief Magistrate Judge
OPINION AND ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT COURT
3, 2019, Judgment was entered dismissing the petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 as
time-barred. (ECF No. 10.) Petitioner has filed a Motion for
Reconsideration pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure. (ECF No. 11-2.) For the reasons that
follow, Petitioner's Motion for Reconsideration (ECF No.
11-2) is DENIED.
argues that relief from final Judgment of dismissal is
warranted based on the Supreme Court's decision in
Garza v. Idaho, -- U.S. --, 139 S.Ct. 738 (2019)
(holding that the presumption of prejudice recognized in
Roe v. Flores-Ortega, 528 U.S. 470 (2000), due to an
attorney's failure to file an appeal applies even where
the defendant has waived his right to appeal under the terms
of his guilty plea), and because this Court improperly
concluded that he had been notified of his right to file an
appeal. Petitioner complains that the Plea Agreement
contained inadequate notification of his right to file an
appeal, failed to inform him of his right to court-appointed
counsel on appeal, and did not serve to relieve the duty of
trial counsel and the trial court to ensure that he
understood his right to an appeal. Petitioner maintains that
he had a potentially meritorious issue for appeal, based on
the trial court's improper imposition of restitution in
the amount of $6, 000.00, rather than $3, 000.00. He also
indicates that he waited more than a year and one month after
the appellate court's denial of his motion for a delayed
appeal before filing this habeas corpus petition in order to
exhaust his claims by filing an appeal with the Ohio Supreme
Court. The record, however, reflects no basis for relief.
to alter or amend judgment under Rule 59(e) may be granted
where there exists a clear error of law; newly discovered
evidence; an intervening change in controlling law; or a need
to prevent manifest injustice. Clark v. United
States, 764 F.3d 653, 661 (6th Cir. 2014) (citing
Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv.,
616 F.3d 612, 616 (6th Cir. 2010)).“Relief under Rule
59(e), however, ‘is an extraordinary remedy and should
be granted sparingly because of the interests in finality and
conservation of scarce judicial resources.'”
Carter v. Bradshaw, No. 3:02CV00524, 2016 WL
1394059, at *1 (N.D. Ohio April 8, 2016) (citing U.S. ex
rel. Am. Textile Mfrs. Inst. Inc. v. The Limited, Inc.,
179 F.R.D. 541, 547 (S.D. Ohio 1998); Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005) (noting that the
“extraordinary circumstances” justifying the
reopening of a final judgment “will rarely occur in the
habeas context”). Additionally, “Rule 59(e)
motions cannot be used to present new arguments that could
have been raised prior to judgment.” Howard,
533 F.3d at 475. Rule 59 “allows for reconsideration;
it does not permit parties to effectively ‘re-argue a
case.” Howard, 533 F.3d at 475 (quoting
Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
the Supreme Court's decision in Garza does not
assist the Petitioner. The issue before the Court does not
involve whether the presumption of prejudice should apply
based on the denial of the effective assistance of counsel,
but whether this action is barred by the one-year statute of
limitations set forth under 28 U.S.C. § 2244(d).
Petitioner waited approximately three years and five months
after the statute of limitations had expired to pursue
federal habeas corpus relief. Further, as previously
discussed, the record does not reflect that he acted
diligently in pursuing relief. This Court has already
rejected the arguments Petitioner presents to the contrary,
and will not now again do so here.
Motion for Reconsideration (ECF No. 11) is
IS SO ORDERED.
 The limitations on successive motions
that apply to motions under Rule 60(b) of the Federal Rules
of Civil Procedure do not apply to motions under Rule 59.
See Howard v. United States, 533 F.3d 472 (6th Cir.
2008); Gonzalez v. Crosby, 545 U.S. 524 (2005).
Regardless, a petitioner's challenge to the Court's
application of the statute of limitations is not considered
to be a successive or second habeas corpus petition subject
to authorization for filing from the United States Court of
Appeals for the Sixth Circuit under 28 U.S.C. §