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Harbison v. Bell

January 16, 2007

EDWARD JEROME HARBISON, PETITIONER,
v.
RICKY BELL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Curtis L. Collier

MEMORANDUM and ORDER

Edward Jerome Harbison ("Harbison"), a Tennessee prison inmate awaiting execution, filed this case as a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241, et seq. (Court File No. 135) or, alternatively, as a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Harbison has now filed two motions-a motion to alter or amend (Court File No.154) and a motion to expand the appointment of counsel (Court File No. 156) Respondent Rickey Bell, Warden ("Respondent") filed a response to the motion to alter or amend (Court File No. 157).

Because the Court finds Harbison's motions are not well taken and are not supported by governing law, the Court DENIES both motions.

I. DISCUSSION

A. Procedural History

This case began in 1997 when Habison first filed his habeas petition. In 2001 the Court granted summary judgment to Respondent and dismissed the petition (Court File No. 102). Harbison appealed this Court's decision to the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit")(Court File No. 122). In 2005 the Sixth Circuit affirmed the Court's decision (Court File No. 128). Harbison filed a writ of certiorari with the United States Supreme Court and also file a second petition for the writ of habeas corpus (Court File No. 135). Included in this petition was also a request for relief from the judgment.

Based upon the clear statutory law and case law precedents, this Court issued an order and memorandum, denying the motion for relief from judgment and transferring the petition part of the filing to the Sixth Circuit (Court File No. 152, Order of Court; Court File No. 151, Memorandum of Law).

In reaction to this order, Habison now brings these two new motions, his Motion to Alter or Amend Order and Memorandum and his Request for Leave to Expand Appointment Order.

The Court will discuss them in turn. B. Motion to Alter or Amend

Harbison argues the Court should amend its order and memorandum to include "findings as to whether the state procedural bar as applied to this case and discussed in the memorandum rests upon independent state grounds." (Court File No.154, Motion to Alter or Amend). In the body of the motion Harbison mentions Fed. R .Civ.P. 52 (b) and 59 as authority for his request. Later on he mentions Fed. R. Civ. 60(b). It is not at all clear from his arguments which rule he relies upon because he had made no effort to demonstrate he has complied with the requirements of any of the three rules.

The Court's order was entered on November 28, 2006. This motion was filed on December 7, 2006. Rule 52 by its very terms applies to instances where the court has tried a case without a jury. Obviously, no such trial took place in this case. How Rule 52 is applicable is not stated.

Rule 59(e) authorizes motions to alter or amend a judgment if filed within ten days. However, under Rule 59(e), the district court has considerable discretion whether to alter or amend or reconsider an earlier ruling. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993); Columbia Gas Transmission Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir. 1991). The court must balance the need for finality with the need to render just decisions. Edward H. Bohlin Co., Inc., 6 F.3d at 355. However, "[i]n practice, because of the narrow purposes for which they are intended, Rule 59(e) motions typically are denied." Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2810.1 at 128; see also Ruscavage v. Zuratt, 831 F. Supp. 417, 418 (E.D. Pa. 1993) (noting Rule 59(e) motions "should be granted sparingly because of the interests in finality and conservation of judicial resources").

A Rule 59(e) motion is "aimed at reconsideration, not initial consideration." F.D.I.C. v. World University Inc., 978 F.2d 10, 16 (1st Cir. 1992) (citations omitted). A party should not use the motion to "raise arguments which could, and should, have been made before judgment issued." Id. Thus, the motion should "either clearly establish a manifest error of law or must present newly discovered evidence." Id. Evidence brought to a court's attention under Rule 59(e) must have been previously "unavailable." Lostumbo v. Bethlehem Steel, Inc., 8 F.3d 569, 570 (7th Cir. 1993); Atlantic States Legal Foundation v. Karg Bros., 841 F. Supp. 51, 53 (N.D.N.Y. 1993) (noting a court is justified in reconsidering its earlier ruling if "new evidence not previously available comes to light"). "Newly discovered evidence" is that which is "truly newly discovered or ... could not have been found by due diligence." Atlantic States, 841 F. Supp. at 56 (citation omitted).

Rule 60(b) permits motions for relief from judgment in very limited circumstances. Rule 60 (b) provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or ...


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