United States District Court, E.D. Michigan, Southern Division
ORDER DENYING WATSON'S: (1) RULE 59(E) MOTION TO
ALTER OR AMEND JUDGMENT [DOC. 927]; (2) MOTION TO APPOINT
COUNSEL [DOC. 931]; AND (3) FED. R. CRIM. P 41(G) MOTION FOR
FULL ACCOUNTING [DOC. 935]
Victoria A. Roberts United States District Judge.
January 13, 2017, the Court entered an order denying Kevin
Watson's 28 U.S.C. § 2255 motion to vacate, set
aside or correct sentence.
that order, Watson filed three motions which are now before
the Court: (1) motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e); (2) motion to appoint
counsel; and (3) motion for a full accounting under Federal
Rule of Criminal Procedure 41(g).
motions are DENIED.
Motion to Amend or for Reconsideration [Doc. 927]
filed his motion to amend/for reconsideration on March 21,
2017. In his reply brief, Watson clarifies that his motion is
a motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e). [Doc. 940, PgID 15245].
government says: (1) Watson's Rule 59 motion is untimely
because it was not filed within 28 days of the Court's
order; and (2) the Court should construe Watson's new
claims (i.e., arguments Watson did not make in his §
2255 motion) as a motion to file a second or successive
application for § 2255 relief because the time for
seeking appellate review of the order expired.
Rule 59, a party must file a motion to alter or amend a
judgment “no later than 28 days after the entry of the
judgment.” Fed.R.Civ.P. 59(e). And, “[g]enerally,
petitioners have 60 days [after entry of the judgment] to
appeal from the denial of a § 2255 motion.”
Gillis v. United States, 729 F.3d 641, 643 (6th Cir.
2013) (citing Fed. R. App. P. 4(a)(1)(B) and Rule 11(b) of
the Rules Governing § 2255 Proceedings for the United
States District Courts).
because the Court did not enter a separate judgment as
required by Fed.R.Civ.P. 58(a), the judgment was not
considered “entered” until 150 days after the
order denying Watson's motion was entered:
Generally, petitioners have 60 days to appeal from the denial
of a § 2255 motion, see Fed. R. App. P.
4(a)(1)(B) and Rule 11(b) of the Rules Governing § 2255
Proceedings for the United States District Courts (Habeas
Rules), but Gillis had 210 days to file his appeal because
the district court failed to enter a separate judgment, as
required by Federal Rule of Civil Procedure 58(a).
Gillis had sixty days to file his appeal from the time the
judgment was entered. See Fed. R. App. P.
4(a)(1)(B). However, the district court's judgment was
not considered ‘entered' until February 6, 2012-150
days after it denied the § 2255 motion-because Federal
Rule of Appellate Procedure 4(a)(7) defines a judgment as
entered 150 days after entry in the civil docket in the
absence of a separate judgment required under Civil Rule
58(a). Fed. R. App. P. 4(a)(7)(A)(ii). Civil Rule 58(a)
requires a separate judgment for all decisions or orders,
except for those made pursuant to Civil Rules 50(b), 52(b),
54, 59 or 60, see Fed.R.Civ.P. 58(a), none of which applies
to Gillis's [§ 2255] motion. Because the district
court denied Gillis's motion in a ‘Memorandum of
Opinion and Order, ' and did not enter a separate
judgment as required under Appellate Rule 4(a)(7) and Civil
Rule 58(a), Gillis ...