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United States v. Hunter

United States District Court, S.D. Ohio, Western Division, Dayton

December 5, 2019


          District Judge Thomas M. Rose



         This criminal case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. Hunter v. United States, No. 16-3613, __F. App'x, __, 2019 U.S. App. LEXIS 31768 (6th Cir. Oct. 24, 2019). The remand became effective when the circuit court issued its mandate on November 21, 2019 (ECF No. 287).

         Litigation History

         Hunter was indicted March 28, 2006 (ECF No. 22). The case was tried to a jury in July 2006 which convicted Hunter on all four counts in a Superseding Indictment returned April 25, 2006 (Verdict, ECF No. 51). After reviewing a Presentence Investigation Report, Judge Rose imposed an aggregate sentence of 420 months imprisonment (Judgment, ECF No. 93). On appeal the United States Court of Appeals for the Sixth Circuit reversed Hunter's conviction for violating 18 U.S.C. § 924(c)(1), but affirmed the convictions and sentence on the remaining counts. United States v. Hunter, 558 F.3d 495 (6th Cir. 2009). After Judge Rose entered an Amended Judgment on remand, imposing an aggregate sentence of 360 months imprisonment (Doc. No. 119), Hunter appealed again, but this time the Sixth Circuit affirmed. United States v. Hunter, 646 F.3d 372 (6th Cir. 2011). Hunter's conviction became final on direct appeal when the Supreme Court denied certiorari October 7, 2011. Hunter v. United States, 132 S.Ct. 390 (2011). Hunter's § 2255 Motion was filed September 11, 2012, almost a year later but within the statute of limitations (ECF No. 135).

         Hunter's § 2255 Motion pleads nine grounds for relief. On August 30, 2013, the Magistrate Judge recommended that Grounds One and Three through Nine be dismissed (Report and Recommendations, ECF No. 158; hereinafter “2013 Report”). District Judge Rose adopted that Report on October 29, 2013 (ECF No. 167). Hunter appealed from that decision (ECF No. 174), but the Sixth Circuit dismissed the appeal for lack of jurisdiction because Judge Rose's order did not dispose of all claims in the case; that is, it was not a final appealable order. Hunter v. United States, No. 14-3008, 2014 U.S. App. LEXIS 11322 (6th Cir. Mar. 25, 2014).

         The Magistrate Judge held an evidentiary hearing on Ground Two and, after briefing, recommended dismissal (Report and Recommendations, ECF No. 209, the “2015 Report”). Having reviewed objections by both parties, on February 12, 2016, District Judge Rose dismissed Hunter's entire Motion to Vacate, but granted a certificate of appealability on Ground Two (ECF No. 228, amended at ECF No. 229). No. separate judgment was entered under Fed.R.Civ.P. 58.

         On March 14, 2016, before the time for appeal had run, Hunter filed a motion for reconsideration under Fed.R.Civ.P. 59(e) (ECF No. 233). On May 5, 2016, Hunter, who had previously been represented by counsel, filed a pro se Notice of Appeal (ECF No. 258). On May 7, 2016, the Magistrate Judge notified Hunter of his understanding that the filing of a Notice of Appeal deprived this Court of jurisdiction to decide his Fed.R.Civ.P. 59(e) motion and asked him to decide if he wished his letter of May 5, 2016, to be deemed a notice of appeal in light of that understanding (ECF No. 244). He allowed the letter to stand as a notice of appeal (Correspondence, ECF No. 249), and that was how the Sixth Circuit treated it.

         Current Status of the Litigation

         In its remand order, the Sixth Circuit corrected the Magistrate Judge's misunderstanding of the impact of Hunter's Notice of Appeal on this Court's authority to decide the Rule 59(e) motions by noting that Fed. R. App. P. 4 suspends the effectiveness of any notice of appeal filed before a timely Rule 59(e) motion until that motion has been decided. Because the Notice of Appeal was not yet effective, the circuit court found it did not have jurisdiction and dismissed the appeal. Hunter, 2019 U.S. App. LEXIS 31768, at *5.).

         Hunter initially filed his Motion for Reconsideration pro se (ECF No. 231). Because it had been filed pro se at a time when Hunter was represented by appointed counsel, the Magistrate Judge struck it (ECF No. 232). Appointed counsel then filed a Motion for Reconsideration, which attached the pro se Motion as Hunter had written it (ECF Nos. 233). After the Court unsealed the Report and Recommendations in the case of United States v. Stonerock, No. 3:02-cr-5 (S.D. Ohio), appointed counsel re-filed the Motion for Reconsideration in unredacted form (ECF No. 236). The unredacted Motion requests this Court to reconsider its Order Denying Defendant's Motion to Amend (ECF No. 227) and its Amended Entry and Order Dismissing Petition for Relief Under 28 U.S.C. § 2255 (ECF Nos. 228 & 229).

         The Government opposes the Motion for Reconsideration (ECF No. 237). Hunter filed a Response in support (ECF No. 238) and the Government, with Court permission, filed a Supplemental Memorandum in Opposition (ECF No. 240). Hunter, who is now proceeding pro se, has recently filed a Supplemental Memorandum asking the Court to apply Byrd v. Skipper (ECF No. 284, citing 940 F.3d 248 (6th Cir. 2019)).


         “A motion under Fed.R.Civ.P. 59(e) is not an opportunity to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citation omitted). Thus, parties may not use them to raise arguments which could and should have been made before judgment. Id. Rather, for a district court to grant relief under Rule 59(e), “there must be ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6thCir. 2009) (quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).

Motions to alter or amend judgment may be granted if there is a clear error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374, newly discovered evidence, see id., an intervening change in controlling law, Collison v. International Chem. Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994); Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School District No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), or to prevent manifest injustice. Davis, 912 F.2d at 133; Collison, 34 F.3d at 236; Hayes, 8 F.3d at 90-91 n.3. See also North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
To constitute “newly discovered evidence, ” the evidence must have been previously unavailable. See ACandS, 5 F.3d at 1263; Javetz v. Board of Control, Grand Valley State Univ. 903 F.Supp. 1181, 1191 (W.D. Mich. 1995) (and cases cited therein); 11 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2810.1 at 127-28 (2d ed. 1995).

Gencorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); accord: Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

         Hunter's ...

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