United States District Court, S.D. Ohio, Western Division, Dayton
District Judge Thomas M. Rose
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
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).
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).
§ 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).
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.
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.
Status of the Litigation
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.).
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).
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.
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
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).