United States District Court, E.D. Wisconsin
JASON J. TYSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
September 21, 2017, Jason J. Tyson (“Tyson”), a
federal prisoner, filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255,
asserting that his conviction and sentence were imposed in
violation of the Constitution. (Docket #1). After receiving
briefing from the parties, the Court denied the motion and
dismissed this action in an order dated January 30, 2018.
(Docket #16, #17). Tyson filed a notice of appeal on February
16, 2018, (Docket #19), and simultaneously filed a motion
addressed to this Court requesting reconsideration of the
dismissal order pursuant to Federal Rule of Civil Procedure
59(e), (Docket #18). The Court will deny that motion.
59(e) empowers a court to alter or amend a judgment on motion
by a party. Fed.R.Civ.P. 59(e). The party seeking relief
under this Rule must establish “a manifest error of law
or present newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008).
“Motions under Rule 59(e) cannot be used to present
evidence that could have been presented before judgment was
entered.” Id. Whether to grant a motion to
amend a judgment “is entrusted to the sound judgment of
the district court, ” In re Prince, 85 F.3d
314, 324 (7th Cir. 1996), but the movant must first
“clearly establish” his right to relief, Romo
v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n.3 (7th
another branch of this Court has noted, a “manifest
error of law” must be “egregious” to
warrant relief under this Rule. Stelter v. Meli, No.
14-cv-904-pp, 2017 WL 663546, at *1 (E.D. Wis. Feb. 17,
2017). “Appeal, not reconsideration, is the time to
deal with the majority of legal errors, ” and so only
“manifest errors. . .so obvious that no additional
explanation is needed or possible” are proper subjects
of a Rule 59 motion. Burney v. Thorn Ams., Inc., 970
F.Supp. 668, 671 (E.D. Wis. 1997). Such error “is not
demonstrated by the disappointment of the losing party”
but instead “the ‘wholesale disregard,
misapplication, or failure to recognize controlling
precedent.'” Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v.
Callahan, 987 F.Supp. 1063, 1069 (N.D.Ill. 1997)).
motion presents no more than his disagreement with the
Court's conclusions. This is not a proper basis for
reconsideration. First, he suggests that his lawyer's
failure to object to Magistrate Duffin's report and
recommendation on his motion to suppress violated the rule of
Roe v. Flores-Ortega, 528 U.S. 470 (2000). (Docket
#18 at 2). He is incorrect for the reasons explained in the
Court's prior order. (Docket #16 at 15). Rule 59(e) does
not afford the losing party a second bite at the apple.
See Banks v. Chicago Bd. of Educ., 750 F.3d
663, 667 (7th Cir. 2014) (allegations of simple legal or
factual errors do not warrant, much less require,
Tyson's assertion that the Court was required to convene
an evidentiary hearing is without merit. (Docket #18 at 2).
Although it seemed that he and the government were in
agreement on this issue, the Court's time and resources
are ever more thinly stretched and the burden of an
evidentiary hearing is not lightly undertaken. The mere
agreement of the parties is never enough, standing alone, to
compel such a proceeding. Moreover, the Court's finding
that Tyson's case is distinguishable from
Flores-Ortega meant that no presumption of prejudice
to Tyson arose from his counsel's actions, and a hearing
to probe the reasons for those actions was therefore
unnecessary. See (Docket #16 at 15).
Tyson unsuccessfully reargues the merits of his potential
objections to the magistrate's report and recommendation
under the guise of reconsideration. He reiterates his views
of the Fourth Amendment and Terry but does not
identify unmistakable errors of law or fact in the
Court's order. (Docket #16 at 5). Indeed, although he
focuses his energy on his claim about a police officer
peering into his van, it is worth noting that the Court found
the claim was not only meritless but waived. (Docket #16 at
13). Again, the fact that Tyson is unhappy with the
Court's decision is not a reason for reconsideration.
Tyson may address his concerns to the Court of Appeals.
Because his arguments fall well short of “clearly
establish[ing]” that Rule 59 relief is warranted,
Romo, 250 F.3d at 1122 n.3, the Court will deny his
IT IS ORDERED that Petitioner's motion to alter or amend
the Court's order and judgment of January 30, 2018
(Docket #18) be and the same is hereby DENIED.
In construing pro se filings
generously, the Court is required to consider what grounds
for post-judgment relief might be appropriate, regardless of
the authorizing Rule the litigant actually cited. See
Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
Because Tyson identifies only purported legal errors the
Court committed, Rule 59 is the appropriate starting point
for his motion, and other rules, like Rule 60(b), are not.
See id.; Fed.R.Civ.P. 60(b). This is true ...