United States District Court, E.D. Wisconsin
GARRY A. BORZYCH, Petitioner,
BRIAN FOSTER, Respondent.
Stadtmueller U.S. District Judge
March 26, 2018, the Court dismissed Petitioner's petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Docket #8). The Court, reviewing Magistrate Judge
Nancy Joseph's report and recommendation on the screening
of the petition, agreed with the magistrate that the petition
was an unauthorized second or successive petition and
therefore could not be entertained in this Court.
Id. The Court entered judgment in favor of
Respondent. (Docket #9). Petitioner filed a notice of appeal
on April 2, 2018. (Docket #10).
also filed a motion for leave to proceed in forma
pauperis on appeal. (Docket #17). The Court denied that
motion in an order dated April 16, 2018, finding that
Petitioner's appeal was not taken in good faith. (Docket
#23). Despite lodging a multitude of complaints against this
Court and Magistrate Joseph, Petitioner failed to address the
key reason that his petition must be dismissed: it is a
second or successive petition, barred from consideration
unless it receives the Court of Appeals' prior
authorization. Id. at 2. Because he identified no
non-frivolous basis to question the Court's conclusion on
this issue, the Court was obliged to deny him leave to
proceed in forma pauperis on appeal. Id. at
April 23, 2018, Petitioner filed a motion requesting
reconsideration of that decision. (Docket #24). Although he
cites no authority supporting his motion, two rules allow a
court to revisit a final judgment in civil cases. First, Rule
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). 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 Cir. 2001).
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)).
Rule 60(b) allows the Court to vacate a judgment based on,
inter alia, excusable neglect, newly discovered
evidence, fraud by a party, satisfaction of the judgment, or
“any other reason that justifies relief.”
Fed.R.Civ.P. 60(b). Relief under Rule 60(b) is an
“extraordinary remedy and is granted only in
exceptional circumstances.” Wickens v. Shell Oil
Co., 620 F.3d 747, 759 (7th Cir. 2010). The Court's
determination is constrained only by its sound discretion.
Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir.
Rule affords Petitioner any relief here. Petitioner does
little more than express his disappointment at his motion
being denied. This is not a proper basis for reconsideration.
Rules 59(e) and 60(b) do not exist to 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
to the extent Petitioner complains that this Court and
Magistrate Joseph did not address one or more issues raised
in his petition, including his claim of actual innocence,
see (Docket #24 at 1-2), this is because the
district court cannot consider any issue raised in a second
or successive habeas petition unless that petition is first
authorized by the Court of Appeals. There is no way around
that requirement. As the text of Section 2244(b) makes clear,
even if a petitioner can overcome the second-or-successive
bar through a claim of actual innocence, that claim must
first be authorized by the Court of Appeals before the
district court can consider it. 28 U.S.C. §
2244(c)(3)(A); Gonzalez v. Crosby, 545 U.S. 524,
529-30 (2005). Because Petitioner's arguments fall well
short of “clearly establish[ing]” that
reconsideration is warranted, Romo, 250 F.3d at 1122
n.3, the Court will deny his motion.
IT IS ORDERED that Petitioner's motion
for reconsideration of the Court's April 16, 2018 order