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Brown v. Foster

United States District Court, E.D. Wisconsin

February 27, 2018

ENNIS LEE BROWN, Petitioner,
v.
BRIAN FOSTER, Respondent.

         ORDER 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)

         Among 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 premature.

         I. Background

         On 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.

         A month 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.

         The 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.

         The 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.

         Two 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.

         II. Analysis

         A. Motions for Reconsideration of Earlier Orders

         The 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.

         1. Standard Governing Motions for Reconsideration

         "Although 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 order.

         The 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 60(b).

         "The 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

         On 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 ...

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