The opinion
DERIC BROWN,
#06376-089,
Petitioner,
v. Case No. 19-cv-00857-NJR
T.G. WERLICK,
Respondent.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Deric Brown filed a habeas corpus action pursuant to 28 U.S.C. § 2241 to challenge
the validity of the sentence imposed in United States v. Brown, No. 01-cr-00196-JPS-1 (E.D.
Wis. 2002) (“Criminal Case”). Brown argues that his sentence was unlawfully enhanced
according to the ruling in Mathis v. United States, 136 S.Ct. 2243 (2016), and in violation of
Section 403 of the First Step Act. The Court dismissed the petition on preliminary review
because the argument made in the petition does not arise out of Mathis and the First Step
Act does not apply to his conviction. (Doc. 5).
Now before the Court is Brown’s Motion for Reconsideration pursuant to Federal
Rule of Civil Procedure 59(e). (Doc. 7). The motion was filed within twenty-eight days of
the entry of the order dismissing his petition and it will therefore be considered under
Rule 59(e).
Altering or amending a judgment through Rule 59(e) is an “extraordinary
remed[y] reserved for the exceptional case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.
2008). Rule 59 motions are for the limited purpose of correcting a “manifest error,” and
“[a] ‘manifest error’ is not demonstrated by the disappointment of the losing party”;
precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and
internal quotations omitted).
Brown first argues that the Court’s decision has resulted in a manifest error of law
and fact because this Court has allowed similar petitions to proceed after preliminary
review in Elem v. Werlich, 19-cv-744-NJR, and Curtis v. Werlich, 19-cv-821-RJD. That is of
no significance. Orders on preliminary review are just that—preliminary—and are not
orders on the merits. Further, district court orders are not authoritative even within the
district issuing the order. Van Straaten v. Shell Oil, 678 F.3d 486, 490 (7th Cir. 2012).
Brown next argues that the Court was incorrect in deciding that Mathis does not
apply to his convictions for brandishing a firearm during a crime of violence (bank
robbery) in violation of 18 U.S.C. § 924(c). Mathis concerns the method courts are to use
in determining whether a prior conviction constitutes one of the violent felonies
enumerated in the Armed Career Criminal Act, 18 U.S.C. § 924(e). Mathis, 136 S. Ct. at
2247. Brown was sentenced under Section 924(c), not the section at issue in Mathis, and
the reasoning of Mathis does not extend to Section 924(c) because there are no enumerated
crimes in Section 924(c). Because Brown makes no argument arising out of Mathis or any
other new case of statutory construction, he cannot meet the Davenport requirements for
bringing a Section 2241 petition. Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013).
For these reasons, the Motion for Reconsideration (Doc. 7) is DENIED. Under Rule
59(e), Brown’s filing of his motion (Doc. 7) suspended the deadline for him to appeal the
dismissal of this case. Therefore, if he wishes to appeal the dismissal of his habeas
petition, his notice of appeal must now be filed with this Court within 60 days of the date
UP UMS UITUCT. DEL ING LART Be CRLAPLA UII] ALIN APUEP LA]. LA TEDOUOTT LOL IRAVE WU appeal □□□
forma pauperis (“IFP”) must set forth the issues he plans to present on appeal. See FED.
R. App. P. 24(a)(1)(C). If Brown does choose to appeal and is allowed to proceed IFP, he
will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past six months) irrespective of the
outcome of the appeal. See FED. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2).
It is not necessary for Brown to obtain a certificate of appealability from this
disposition of his Section 2241 petition. Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: April 6, 2020
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NANCY J. ROSENSTENGEL |
Chief U.S. District Judge
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