United States District Court, E.D. Wisconsin
DENYING PETITIONER'S MOTION FOR RECUSAL (DKT. NO. 30),
DENYING PETITIONER'S MOTIONS FOR RELEASE PENDING 28
U.S.C. §2254 RELIEF (DKT. NOS. 40, 43, 45, 57), DENYING
MOTION FOR EVIDENTIARY HEARING (DKT. NO. 31), DENYING MOTION
TO ENLARGE THE RECORD (DKT. NO 32) AND DENYING MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 33)
the pending motions in this case are five motions in which
the petitioner argues issues the court already has decided.
These motions include a motion for recusal, dkt. no. 30, and
four motions for release pending 28 U.S.C. §2254 relief,
dkt. nos. 40, 43, 45, 57. The court will deny the
petitioner's renewed motions, and will also deny without
prejudice the petitioner's motions for an evidentiary
hearing, dkt. no. 31, to enlarge the record, dkt. no. 32, and
for summary judgment, dkt. no. 33, because they are
November 8, 2016, the petitioner filed a petition for a writ
of habeas corpus under 28 U.S.C. §2254. Dkt.
No. 1. He alleged that the State of Wisconsin convicted and
sentenced him in violation of the Fourth and Sixth
Amendments. Id. at 8, 12. At the same time, the
petitioner filed a motion for leave to proceed in the
district court without prepaying the filing fee. Dkt. No. 4.
After the court denied the motion to proceed without
prepaying the fee on November 28, 2016, the petitioner filed
a "motion for substitution[, ]" in which he asked
Judge Pepper to recuse herself from presiding over the case.
Dkt. No. 7. Because there is no procedure for
"substituting" a judge in the federal court system,
the court construed the petitioner's motion as a motion
to recuse under 28 U.S.C. §455, and denied that motion
in its December 6, 2016 order. Dkt. No. 8.
later, on January 9, 2017, the court screened the
habeas petition and ordered the respondent to file
an answer within sixty days. Dkt. No. 9. After the respondent
answered on March 9, 2017, dkt. no. 19, the petitioner filed
several motions: a motion to amend his petition, dkt. no. 15;
a motion to appoint counsel, dkt. no. 16; and two motions
asking the court to release him from custody pending its
ruling on his habeas petition, dkt. nos. 21, 22.
court addressed these motions in a May 23, 2017 order-it
allowed the petitioner to file an amended complaint, but
noted that while the petitioner claimed to be adding five new
grounds to the amended petition, "the court can only
find two new claims: an Eighth Amendment double jeopardy
claim, dkt. no. 15-1 at 40, and a Fourteenth Amendment
insufficient evidence claim, id. at 46." Dkt.
No. 25 at 2. The court opined that the other
"grounds" in the amended petition augmented the
petitioner's existing claims, but did not assert
stand-alone grounds for habeas relief. Id.
The court then granted the petitioner's motion to amend
the petition. Id. at 5.
court also analyzed the petitioner's motions for release
pending §2254 relief, and denied them, because the
petitioner's "thin recitation" of his claims
did not give the court confidence that he would be able to
meet the high threshold for 28 U.S.C. §2254 relief. Dkt.
No. 25 at 10.
weeks later, on June 5, 2017, the petitioner filed a motion
for recusal. Dkt. No. 30. On June 27, July 17, July 26, and
September 26 of 2017, the petitioner filed four motions for
release pending §2254 relief. Dkt Nos. 40, 43, 45, 57.
The petitioner also has filed a motion for an evidentiary
hearing, dkt. no. 31, a motion to enlarge the record, dkt.
no. 32, and a motion for summary judgment, dkt. no. 33.
Motions for Reconsideration of Earlier Orders
court already has ruled on the issues that the petitioner
raises in his motions for recusal and for release pending
§2254 relief. See Dkt. Nos. 8, 25. Thus, the
court considers his renewed motions on these subjects to be
requests for the court to reconsider its previous decisions.
Standard Governing Motions for Reconsideration
motions to reconsider are not specifically authorized by the
Federal Rules of Civil Procedure, courts in the Seventh
Circuit apply Rule 59(e) or Rule 60(b) standards to these
motions." Washington Frontier League Baseball, LLC
v. Zimmerman, No. 14-cv-1862-TWP-DML, 2016 WL 4798988,
at *1 (S.D. Ind. Sept. 14, 2016). Rule 59(e) allows a court
to alter or amend a judgment if the party files the motion
"no later than 28 days after the entry of the
judgment." Rule 60(b) allows a court to relieve a party
of its obligations under a judgment, order or proceeding for
five enumerated reasons as well as for "any other reason
that justifies relief;" under Rule 60(c), a party may
file a Rule 60(b) motion within a reasonable time, as long as
it is no more than a year after entry of the judgment or
petitioner filed his most recent motion to recuse five months
and twenty days after the court denied the first motion-too
late for the court to consider it under Rule 59(e). He filed
the first of his three motions for release thirty-five days
after the court denied the original motion-again, too late
for the court to consider it under Rule 59(e). Accordingly,
the court will review the petitioner's motions under Rule
district court may grant Rule 60(b) relief only 'under
the particular circumstances listed in the text of that
rule.'" 3SM Realty & Development, Inc. v.
F.D.I.C., 393 Fed.Appx. 381, 384 (7th Cir. 2010)
(quoting Russell v. Delco Remy Div. of General
Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)). Rule
60(b) provides that
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it ...