United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
14 AND 15]
Y. PEARSON, UNITED STATES DISTRICT JUDGE
are Pro Se Petitioner's Motions to Alter or
Amend Judgment (ECF No. 14) and for Notice to be Taken of
Supporting Case Law and Authorities (ECF No. 15). For the
reasons stated below, the motions are denied.
case was previously transferred from the United States
District Court for the Southern District of Ohio.
See Order (ECF No. 2). Petitioner Phillip Douglas
Jacobs a/k/a Bismillah is a state inmate incarcerated at the
Marion Correctional Institution. He filed a “Complaint
for Declaratory Judgment Order and Petition for Writ of
Prohibition” (ECF No. 1-1) under 28 U.S.C. §§
2201 and 1651 to challenge his sentences and continued
incarceration. Petitioner is no stranger to this federal
court, having filed nine (9) habeas petitions under 28 U.S.C.
§ 2254 seeking relief from his current convictions and
sentences,  and at least eight (8) civil rights
cases that earned him the designation of a
restricted filer under the three strikes provision of 28
U.S.C. § 1915(g). Bismillah v. Mohr, No.
3:16CV1374 (N.D. Ohio Sept. 24, 2018) (Helmick, J.). The
Declaratory Judgment Act and the All Writs Act, from which
the Writ of Prohibition is derived, do not create an
independent basis for federal subject matter jurisdiction.
Heydon v. MediaOne of Southeast Mich., Inc., 327
F.3d 466, 470 (6th Cir. 2003) (citing Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950));
State of Mich. v. City of Allen Park, 954 F.2d 1201,
1216 (6th Cir. 1992). The Court previously determined
Petitioner could not use them to avoid the procedural bars of
a successive habeas petition or the three-strikes rule of 28
U.S.C. § 1915(g). Memorandum of Opinion and Order (ECF
No. 12) at PageID #154-55.
has now filed this Motion to Alter or Amend Judgment
incredibly claiming that he commenced the above-entitled
action seeking a Writ of Prohibition and the District Court
for the Southern District of Ohio recharacterized it as a
Complaint for Writ of Prohibition. ECF No. 14 at PageID #:
157. He contends the appropriate statute under which to
consider his Petition is 28 U.S.C. § 2241. Petitioner
argues the successive petition restrictions of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) do not apply to § 2241 Petitions.
may grant a Fed.R.Civ.P. 59(e) motion to alter or amend
judgment only if there was “(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.” GenCorp, Inc. v. Am. Int'l
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). A
Rule 59(e) motion 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), nor is it a
proper vehicle to “raise arguments which could, and
should, have been made before judgment issued.”
Id. It is an extraordinary remedy and is seldom
granted “because it contradicts notions of finality and
repose.” Mitchell v. Citizens Bank, No.
3:10-00569, 2011 WL 247421, at *1 (M.D. Tenn. Jan. 26, 2011).
The moving party must “set forth facts or law of a
strongly convincing nature to induce the Court to reverse its
prior decision.” McDaniel v. Am. Gen. Fin.
Servs., No. 04-2667 B, 2007 WL 2084277, at *2 (W.D.
Tenn. July 17, 2007).
does not present a basis for relief under Rule
59(e). He does not cite to an error of law in the
Court's opinion, newly discovered evidence, or an
intervening change in controlling law. First, his attempt to
change this action into a Petition under 28 U.S.C. §
2241 is not appropriate in a Rule 59(e) motion as it
presents a new legal theory upon which to base his action.
Second, it is not useful in avoiding dismissal. If Petitioner
is a state prisoner challenging a state conviction or
sentence, his habeas corpus petition is governed by 28 U.S.C.
§ 2254 regardless of the statutory label he gives it and
it is subject to the restrictions imposed by AEDPA, including
those pertaining to successive petitions. Rittenberry v.
Morgan, 468 F.3d 331, 337-38 (6th Cir. 2006); see
also Greene v. Tennessee Dep't of Corr., 265 F.3d
369, 371 (6th Cir. 2001) (when a state prisoner seeks habeas
relief, but does not challenge a state court conviction or
sentence, the requirements of § 2254 apply no
matter what statutory label is used because the detention
arises from a state court process). This Petitioner should
already know from one of his recent prior cases that “a
petitioner cannot invoke § 2241 to do an end-run around
the bar against successive habeas petitions.”
Jacobs v. Ohio Adult Parole Authority, No.
4:16CV2223, 2018 WL 286208 (N.D. Ohio Jan. 2, 2018) (Carr,
Petitioner's Motions to Alter or Amend Judgment (ECF No.
14) and for Notice to be Taken of Supporting Case Law and
Authorities (ECF No. 15) are denied. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from
this decision could not be taken in good faith.
 See Jacobs v. Dallman, No.
4:92CV1104 (N.D. Ohio July 14, 1992) (White, C.J.) (denied on
the merits); Jacobs v. Russell, No. 4:94CV1910 (N.D.
Ohio May 20, 1997) (Wells, J.) (dismissed without prejudice
for failure to exhaust, and eventually transferred to the
Circuit as a successive petition); Jacobs v. Morgan,
No. 1:01CV2224 (N.D. Ohio Aug. 8, 2003) (Gaughan, J.) (denied
on the merits); Jacobs v. Morgan, No. 1:04CV2488
(N.D. Ohio Jan. 31, 2005) (O'Malley, J.) (transferred to
the Circuit as successive); Jacobs v. Hudson, No.
1:06CV0595 (N.D. Ohio May 3, 2006) (O'Malley, J.)
(transferred to the Circuit as successive); Jacobs v.
Hudson, No. 1:06CV2852 (N.D. Ohio Jan. 25, 2007)
(O'Malley, J.) (transferred to the Circuit as
successive); Jacobs v. Warden Marion Corr. Inst.,
No. 4:13CV1306 (N.D. Ohio Dec. 10, 2013) (Oliver, C.J.)
(transferred to the Circuit as successive); Jacobs v.
Bunting, No. 4:16CV2223 (N.D. Ohio Oct. 6, 2016) (Carr,
J.) (transferred to the Circuit as successive); Jacobs v.
Wainwright, No. 4:18CV0280 (N.D. Ohio Feb. 26, 2018)
(Oliver, J.) (transferred to the Circuit as
See Jacobs v. Youngstown, No.
4:90CV0082 (N.D. Ohio March 30, 1990) (Bell, J.); Jacobs
v. Lane, No. 3:02CV7512 (N.D. Ohio Dec. 15, 2003) (Katz,
J.) (dismissed under 28 U.S.C. § 1915(e)); Jacobs v.
Wilkinson, No. 3:03CV7028 (N.D. Ohio April 21,
2003) (Carr, J.) (dismissed under § 1915(e));
Jacobs v. Hall, No. 3:08CV1262 (N.D. Ohio Oct. 3,
2008) (Katz, J.) (dismissed under § 1915(e)); Jacobs
v. Mohr, No. 3:11CV2294 (N.D. Ohio Jan. 5, 2012) (Carr,
J.) (three strikes under § 1915(g)); Bismillah v.
Mohr, No. 3:16CV1374 (N.D. Ohio Sept. 24, 2018)
(Helmick, J.) (three strikes under § 1915(g));
Jacobs v. Mohr, No. 3:16CV1908 (N.D. Ohio June 28,
2018) (Helmick, J.) ...