United States District Court, E.D. Tennessee, Greeneville
SANDRA E. PARLIER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
Jordan United States District Judge.
December 17, 2015, Petitioner filed a pro se motion to
vacate, set aside, or correct her sentence pursuant to 28
U.S.C. § 2255 [Doc. 375]. In it, she challenged her
sentence based on Johnson v. United States, 135
S.Ct. 2551 (2015), which held that the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition on January 21, 2016
[Doc. 380]. Petitioner did not reply in the time allotted for
her to do so. E.D. Tenn. L.R. 7.1, 7.2. In a Memorandum
Opinion and Judgment Order, this Court denied and dismissed
the petition with prejudice [Docs. 383, 384]. Petitioner now
requests that the Court alter its judgment pursuant to
Federal Rule of Civil Procedure 59(e) [Doc. 385]. See
Williams v. Thaler, 602 F.3d 291, 303-304 (5th Cir.
2010) (“When a litigant files a motion seeking a change
in judgment, courts typically determine the appropriate
motion based on whether the litigant filed the motion within
Rule 59(e)'s time limit.”).
STANDARD OF REVIEW
motion to alter or amend judgment under Rule 59(e) may be
granted for a clear error of law, newly discovered evidence,
an intervening change in controlling law, or to prevent
manifest injustice. GenCorp, Inc. v. American Intern.
Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). It is
improper to use the motion “to relitigate old matters,
or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)
(citation omitted). The Court's discretion to grant
relief must be used sparingly, as revising a final judgment
is an extraordinary remedy. Ira Green, Inc. v. Military
Sales & Service Co., 775 F.3d 12, 18 (1st Cir.
NATURE AND EXTENT OF PRIOR HOLDING
§ 2255 motion contained a single request: unspecified
sentencing relief based on Johnson. This Court
rejected that request, holding as follows:
Petitioner's argument that she no longer possesses
predicate offenses sufficient to support her categorization
as an armed career criminal under § 924(e) or
career-offender under Section 4B1.1 fails because her
sentence was based on the quantity of drugs for which she was
held responsible under § 841(a)(1)-fifty grams of
methamphetamine, not ACCA or career-offender enhancement [PSR
¶¶ 24, 36, 54, 55; Doc. 336]. As such,
Johnson is inapposite to her case.
[Doc. 383 p. 2]. This Court denied the petition because it
did not identify a basis for relief.
REQUEST FOR RECONSIDERATION OF JUDGMENT
raises a single argument in support of reconsideration: this
Court erred because it denied her petition based on the fact
that “Johnson was inapposite” and
“apparently did not see or chose not to reach
Petitioner's contention that her enhanced sentence was
procedurally deficient” [Doc. 385 pp. 1-2].
Specifically, she argues that she is entitled to collateral
relief from her sentence because she never received a copy of
the § 851 notice filed by the United States
59(e) is not a vehicle through which the parties can
“raise arguments which could, and should, have been
made before judgment issued.” Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998); see also Leisure Caviar, LLC v. U.S.
Fish & Wildlife Serv., 616 F.3d 612 (6th Cir. 2010)
(same); Moore v. Coffee Cnty., 402 F. App'x 107,
109 (6th Cir. 2010) (same); Russell v. GTE Gov't Sys.
Corp., 141 F. App'x 429, 434 (6th Cir. 2005)
(stating that the plaintiff cited no authority that could
support a finding of “manifest injustice under Rule
59(e) when the movant neglected to raise the issue
before” judgment). Stated another way, “Rule
59(e) motions are aimed at re-consideration, not initial
consideration. Thus, parties should not use them to raise
arguments which could, and should, have been made before
judgment issued. Motions under Rule 59(e) must either clearly
establish a manifest error of law or must present newly
discovered evidence.” FDIC v. World Univ.
Inc., 978 F.2d 10, 16 (1st Cir. 1992).
Petitioner's suggestion to the contrary [Doc. 385 p. 2],
neither her petition nor contemporaneously-filed
“motion for re-sentencing” challenge her sentence
based on the absence of, or a defective, notice of
enhancement under § 851. Because she did not raise that
challenge prior to this Court's entry of judgment on May
2, 2016, she cannot do so for the first time now.
reasons discussed above, Petitioner's request that the
Court alter or amend its May 2, 2016 Memorandum Opinion ...