The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID CALHOUN, )
) CASE NO. 4:22-cv-1866
Petitioner, )
)
v. ) JUDGE BRIDGET MEEHAN BRENNAN
)
)
WARDEN F. GARZA, ) MEMORANDUM OPINION
) AND ORDER
Respondent. )
Before the Court are Petitioner David Calhoun’s Motion to Alter Judgment (Doc. No.
19), Motions to Supplement (Doc Nos. 22, 29, 31), Motion to Hold Rule 59(e) Motion in
Abeyance (Doc. No. 28), Motion for Extension of Time for 21 Days to File a Sur Reply (Doc.
No. 32) and Motion for Declaratory Judgment (Doc. No. 33). Respondent filed briefs in
opposition to Petitioner’s Motion to Alter Judgment (Doc. No. 23) and Petitioner’s Motion to
Hold in Abeyance and Motion to Supplement (Doc. No. 30).
For the reasons stated below, Petitioner’s Motion to Alter Judgment (Doc. No. 19) is
DENIED. Petitioner’s Motions to Supplement (Doc. Nos. 22, 29, 31), Motion to Hold Rule
59(e) Motion in Abeyance and (Doc. No. 28) and Motion for Extension of Time to File a Sur
Reply (Doc. No. 32) are DENIED AS MOOT. Petitioner’s Motion for Declaratory Judgment
(Doc. No. 33) is also DENIED.
I. BACKGROUND
On October 14, 2022, Petitioner filed a petition for Writ of Habeas Corpus. (Doc. No. 1.)
On May 2, 2023, Petitioner filed an Amended Petition for Writ of Habeas Corpus. (Doc. No.
10.) The Amended Petition raised three grounds for relief:
GROUND ONE: The Government should be equitably estopped from prosecution
and conviction where it breached a confidential source agreement affording
Petitioner immunity for acts performed at the Government’s behest and he was
actually innocent of said acts as charged in the indictment and found by the jury at
trial. This violated Petitioner’s right to due process (Fifth Amendment).
GROUND TWO: The Government should be estopped from the execution of
Petitioner’s sentence where the sentence was obtained in violation of an immunity
provision of a confidential source agreement entered into between the Government
and Petitioner.
GROUND THREE: BOP’s refusal to award First Step Act (FSA) credit for
Petitioner’s programming/productive activities while he was at FDC Philadelphia
(a BOP facility) violates the FSA and Petitioner’s Fifth Amendment right to due
process protection of a liberty interest.
(see Doc. No. 10 at 468-69.)1 On June 5, 2023, Respondent moved to dismiss the Amended
Petition. (Doc. No. 11.)
On August 31, 2023, this Court granted Respondent’s Motion to Dismiss with respect to
the first and second grounds raised in the petition. (See Doc. No. 17 at 891-92.) The Court
granted the Petition with respect to the third ground and ordered that Petitioner be scheduled to
immediate referral to RRC placement. (See id. at 892-93.)
Following the Court’s August 31, 2023 Order, Petitioner filed a series of motions. First,
on September 5, 2023, Petitioner filed a motion to seal or redact the Court’s August 31, 2023
Order. (Doc. No. 24.) The Court denied this motion on September 27, 2023. (Doc. No. 20.)
Next, Petitioner filed a Motion to Alter Judgment on September 20, 2023. (Doc. No. 19.)
The Court ordered the Government to respond to this motion by October 5, 2023. (September
21, 2023 Order.) Before the Government responded to Petitioner’s motion, Petitioner filed a
1 For ease and consistency, record citations are to the electronically stamped CM/ECF document
number and PageID# rather than any internal pagination.
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supplemental motion to alter judgment on September 28, 2023. (Doc. No. 22.) The Government
responded on October 5, 2023. (Doc. No. 23.)
On November 1, 2023, Petitioner filed a Motion to Hold Rule 59(e) Motion in Abeyance.
(Doc. No. 28.) On November 6, 2023, Petitioner filed a motion to supplement his Rule 59(e)
motions. (Doc. No. 29.) The Court ordered the Government to respond to both of these motions
(November 6, 2023 Order), which the Government did on November 17, 2023. (Doc. No. 30.)
Following the Government’s response, Petitioner filed a motion to supplement his motion
to hold his Rule 59(e) motion in abeyance on November 28, 2023. (Doc. No. 31.) On
November 30, 2023, Petitioner filed a motion for a 21 day extension to file a sur reply to the
Government’s October 5, 2023 response. (Doc. No. 32.) Finally, on December 19, 2023,
Petitioner filed a Motion for Declaratory Judgment and a Sur Reply to the Government’s
November 17, 2023 response. (Doc. No. 33.)
II. LAW AND ANALYSIS
A. Motion to Alter Judgment
Rule 59(e) requires that “[a] motion to alter or amend a judgment must be filed no later
than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). A court may grant a motion to
alter or amend judgment under Rule 59(e) only where there is “(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice.” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009) (internal
quotations omitted.)
A Rule 59(e) motion is “extraordinary and sparingly granted,” Cequent Trailer Prods.,
Inc. v. Intradin (Shanghai) Machinery Co., Ltd., No. 1:05-CV-2566, 2007 WL 1362457, at *2
(N.D. Ohio 2007), because “it contradicts notions of finality and repose.” Bey v. Weisenburger,
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No. 3:23 CV 356, 2023 WL 6199755, at *2 (N.D. Ohio Sept. 22, 2023) (citing Mitchell v.
Citizens Bank, No. 3:10-00569, 2011 WL 247421, at *1 (M.D. Tenn. 2011)). As such, a Rule
59(e) motion is “not an opportunity to re-argue a case,” Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998), “relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to entry of judgment.” Oko v.
City of Cleveland, No. 1:21-cv-2222, 2023 WL 6311464, at *4 n.4 (N.D. Ohio Sept. 28, 2023)
(citing 11 Charles Ann Wright, Arthur Miller and Mary Kay Kaye, Federal Practice and
Procedure, 2810.1 (2d ed. 1995)).
Petitioner argues that the Court should alter its August 31, 2023 Order to prevent a
manifest injustice, or alternatively to correct a clear error of law. (Doc. No. 19 at 897.) First,
Petitioner argues that this Court failed to address his request to “either ‘estop’ the Government
from moving to dismiss or ‘strike’ the portion of the Motion to Dismiss that argues contrary to
the ‘protection’-provision of the CSA.” (Id.) Petitioner argues that the Court’s refusal to address
his efforts to strike or estop the government “amounts to a violation of due process.” (Id. at
898.)
Second, Petitioner argues that the Court should take “judicial notice of a BOP policy that
does not appear in any Program Statement nor in the Code of Federal Regulations.” (Id. at 899.)
In support of this request, Petitioner attaches an affidavit that provides further information
regarding this policy and directs the Court to a separate case in this District, which “may”
include a copy of the policy. (Id. at 899-900.) In sum, Petitioner asks the Court to alter its
judgment to “remedy the issue that BOP still owes Petitioner one more day time credit toward
his release.” (Id. at 900.)
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In its response, the Government contends that Petitioner’s motion to alter judgment
should be denied because there has been no intervening change in the controlling law and
Petitioner has not made a showing of manifest injustice. (Doc. No. 23 at 929.) The Government
argues that Petitioner’s motion is an attempt to “relitigate matters previously decided by this
Court.” (Id.)
As to Petitioner’s first argument, the Court addressed Petitioner’s estoppel challenges in
its August 31, 2023 Order, stating they were “improperly raised under Section 2241 because
each challenges the validity of Petitioner’s sentence.” (Doc. No. 17 at 891.) The Court further
explained that to consider Petitioner’s estoppel arguments, Petitioner would need to provide a
“valid reason for why he could not have raised [these] challenge[s] to his conviction in his prior
Section 2255 motion” and “show that the Section 2255 remedy is inadequate or ineffective to
test the legality of [his] present detention.” (Id. at 891-92.) Petitioner has not offered any
reasoning for why the Court’s analysis of his arguments is a clear error of law, nor does he
provide any support for his contention that the Court’s opinion denied him due process.
Regarding Petitioner’s second argument, the Court addressed the BOP policy raised in
his petition and granted Petitioner’s third ground for relief in its August 31, 2023 Order based on
that policy. (Id. at 892-93.) Notwithstanding, Petitioner now refers to another BOP policy—one
that he states “does not appear in any Program Statement nor in the Code of Federal
Regulations”— which allegedly requires his early transfer to supervisory release. (Doc. No. 19
at 899.) The Court cannot take judicial notice of this alleged policy for several reasons. First,
Petitioner has not attached the policy in his filings. At best, Petitioner has provided a partial
citation to a case where this policy “may” be filed. (See id. at 899-900.) The Court is not
obligated to pour through judicial records to identify the document to which Petitioner is
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possibly referring. Second, Petitioner indicates that the document was filed by another
petitioner, not the BOP itself, calling into question the authenticity of this document. Lastly, it
appears that Petitioner is presently in the custody of the Commonwealth of Pennsylvania, not
federal custody.
Accordingly, Petitioner’s argument does not meet the high standard to alter judgment
under Rule 59(e) and his motion is denied.
B. Motion for Declaratory Judgment
“[I]t is well settled that the granting of a declaratory judgment rests in the sound
discretion of the court.” Grand Trunk Western R. Co. v. Consolidated Rail Corp., 746 F.2d 323,
325 (6th Cir. 1984) (internal quotations omitted). In determining whether a declaratory ruling is
appropriate, the court considers:
(1) whether the declaratory action would settle the controversy; (2) whether the
declaratory action would serve a useful purpose in clarifying the legal relations in
issue; (3) whether the declaratory remedy is being used merely for the purpose of
“procedural fencing” or “to provide an arena for a race for res judicata;” (4) whether
the use of a declaratory action would increase friction between our federal and state
courts and improperly encroach upon state jurisdiction; and (5) whether there is an
alternative remedy which is better or more effective.
Id. at 326.
In this case, Petitioner’s motion for declaratory judgment requests:
this Court to issue a Declaratory Judgment stating the Government has waived
execution of the remainder of Petitioner’s federal sentence and that said waiver
occurred on August 19, 2023. Said Declaration should also clarify that the
Government may not credit Petitioner for any time served in any prison beyond
said date of said waiver.
(Doc. No. 33 at 981.) Petitioner further states that “[i]n this manner, Petitioner may appeal to the
Pennsylvania Parole Board for time credit from said waiver date.” (Id.) Petitioner states that he
“understands that this Court cannot force said Parole Board to credit him, but he is confident that
said Board will exercise their discretion to do so.” (Id.)
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Applying the Grand Trunk factors, the Court finds that the first, second, fourth and fifth
factors weigh against granting Petitioner’s proposed declaratory action. Petitioner has not
explained how this action would settle a controversy or serve a useful purpose in clarifying the
timing of his release. Moreover, granting this motion would arguably encroach on the
jurisdiction of the Commonwealth of Pennsylvania by dictating a specific outcome to the
Pennsylvania Parole Board. Lastly, Petitioner has identified an alternative remedy that would be
more effective: he may appeal to the Pennsylvania Parole Board for time credit.
For these reasons, Petitioner’s motion for declaratory judgment is denied.
CONCLUSION
For the reasons stated above, Petitioner’s Motion to Alter Judgment (Doc. No. 19) is
DENIED. Petitioner’s Motions to Supplement (Doc. No. 22, 29, 31), Motion to Hold Rule 59(e)
Motion in Abeyance and (Doc. No. 28) and Motion for Extension of Time to File a Sur Reply
(Doc. No. 32) are DENIED AS MOOT. Petitioner’s Motion for Declaratory Judgment (Doc.
No. 33) is also DENIED.
IT IS SO ORDERED.
_______________________________
BRIDGET MEEHAN BRENNAN
Date: January 18, 2024 UNITED STATES DISTRICT JUDGE
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