United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION UNDER RULE 59(e)
[Dkt., 71] and, MOTION FOR RECONSIDERATION [Dkt.,
Page Hood Chief Judge, United States District Court
filed a motion pursuant to 28 U.S.C. § 2255 with respect
to the Court's determination that he was a habitual
offender under the Sentencing Guidelines. Presently before
the Court are Defendant's Motion under Rule 59(e) [Dkt.
No. 71] and Motion for Reconsideration [Dkt. No. 72] of the
Court's December 19, 2017 denial of his Section 2255
motion. [Dkt. No. 69]
Rule of Civil Procedure 59(e) states, “A motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Motions to alter or
amend judgment may be granted if there is a clear error of
law, newly discovered evidence, an intervening change in
controlling law or to prevent manifest injustice.
GenCorp., Inc. v. American Int'l Underwriters,
178 F.3d 804, 834 (6th Cir. 1999).
Local Rule 7.1(h)
motion for rehearing or reconsideration must be filed within
14 days after entry of the judgment or order.” E.D.
Mich. L.R. 7.1(h)(1). In order to obtain reconsideration of a
particular matter, the party bringing the motion for
reconsideration must: (1) demonstrate a palpable defect by
which the Court and the parties have been misled; and (2)
demonstrate that “correcting the defect will result in
a different disposition of the case.” E.D. Mich. L.R.
7.1(h)(3). See also Graham ex rel. Estate of Graham v.
County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004);
Aetna Cas. and Sur. Co. v. Dow Chemical Co., 44
F.Supp.2d 865, 866 (E.D. Mich. 1999); Kirkpatrick v.
General Electric, 969 F.Supp. 457, 459 (E.D. Mich.
“palpable defect” is a “defect which is
obvious, clear, unmistakable, manifest, or plain.”
Olson v. The Home Depot, 321 F.Supp.2d 872, 874
(E.D.Mich. 2004). The movant must also demonstrate that the
disposition of the case would be different if the palpable
defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v.
Walgreens Income Protective Plan for Store Managers, No.
10-CV-14442, 2013 WL 1040530, at *1 (E.D. Mich. Mar. 15,
2013). “[T]he court will not grant motions for
rehearing or reconsideration that merely present the same
issues ruled upon by the Court, either expressly or by
reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
motions are timely filed, but neither motion identifies a
palpable defect by which the Court and the parties were
misled or presents an argument that supports the granting of
his Section 2255 motion.
argument that his conviction for “attempted delivery of
a controlled substance” should not serve as a prior
felony conviction for a controlled substance offense - and
for purposes of being a career offender under the Sentencing
Guidelines - “merely present[s] the same issues ruled
upon by the Court” in its December 19, 2017 Order. E.D.
Mich. L.R. 7.1(h)(3). The cases he relies upon, People v.
Anderson, 509 N.W.2d 548 (Mich. Ct. App. 1993) and
People v. Vance, 2008 Mich.App. LEXIS 707 (2008),
are not new cases, nor do they establish that a conviction
for attempted delivery of controlled substances is not a
conviction of a controlled substance offense. And, although
it is an unpublished case, the Sixth Circuit's decision
in United States v. Tibbs, 685 Fed.Appx. 456, 462-64
(6th Cir. 2017) (holding that the delivery of a controlled
substance, less than 50 grams, is a “controlled
substance offense” under the Guidelines), is binding on
arguments based on United States v. Mathis, 136
S.Ct. 2243 (2016), are equally unavailing. First,
Mathis addressed the Armed Career Criminal Act, not
the Guidelines. Second, as set forth in the December 19, 2017
Order, M.C.L. § 33.7401 contains separate offenses, not
alternative means of committing the same offenses (as
Defendant argues). Defendant's suggestion that the Court
should not have relied on United States v. Simmons,
329 Fed.Appx. 629 (6th Cir. 2009), because it was decided
before Johnson v. United States, 559 U.S. 133
(2010), is not persuasive because the Simmons
court's determination that assault with intent to commit
great bodily harm constituted a violent felony was based on
the “elements clause of the guidelines, ” not the
residual clause. See, e.g. United States v. Chaney,
2017 WL 3499936, at *5 (E.D. Mich. Aug. 16, 2017).
reasons stated above, the Court finds that Defendant
generally fails to offer any new arguments in his motions and
that, where new argument has been offered, it is not
persuasive. The Court is not persuaded that there was any
palpable defect by which it or the parties were misled, and
Defendant has not demonstrated any clear error of law, newly
discovered evidence, or intervening change in controlling