“[A] petitioner fil[ing] a Rule 59(e) motion . . . may request only that the district court reconsider matters actually raised before it. This is because, as this court has repeatedly held, Rule 59(e
How later courts described this case
- “[A] petitioner fil[ing] a Rule 59(e) motion . . . may request only that the district court reconsider matters actually raised before it. This is because, as this court has repeatedly held, Rule 59(e
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
BENJAMIN CUTLIP,
Petitioner, : Case No. 2:23-cv-02574
-vs - District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN, Correctional Reception
Institution,
:
Respondent.
ORDER DENYING APPOINTMENT OF COUNSEL;
REPORT AND RECOMMENDATIONS ON MOTION TO AMEND
JUDGMENT
This habeas corpus case was brought pro se by Petitioner Benjamin Cutlip to obtain relief
from his conviction on drug charges in the Belmont County Court of Common Pleas. On
September 12, 2024, the undersigned filed a Report and Recommendations recommending the
Petition be denied with prejudice (“Report,” ECF No. 19). Petitioner sought and received
extensions of time to file objections up to and including October 31, 2024 (ECF No. 21). When
Petitioner had filed no objections by November 12, 2024, District Judge Sargus adopted the Report
and dismissed the case (ECF Nos. 22 & 23). On the same day, the Court received a request from
Petitioner for an additional thirty days to object (ECF No. 24). Because Judge Sargus had already
entered judgment, that option was not available. The Magistrate Judge instead notified Petitioner
he could file a motion to amend the judgment not later than December 10, 2024 (ECF No. 25).
The instant Motions to Amend the Judgment (ECF No. 26) and to appoint counsel (ECF
No. 27) followed.
A motion to amend a judgment is made under Fed.R.Civ.P. 59(e). For a district court to
grant relief under Rule 59(e),
“there must be ‘(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) (quoting Henderson v. Walled Lake
Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).
Motions to alter or amend judgment may be granted if there is a clear
error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374, newly
discovered evidence, see id., an intervening change in controlling
constitutional law, Collison v. International Chem. Workers Union,
Local 217, 34 F.3d 233, 236 (4th Cir. 1994); Hayes v. Douglas
Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School District
No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), or to
prevent manifest injustice. Davis, 912 F.2d at 133; Collison, 34 F.3d
at 236; Hayes, 8 F.3d at 90-91 n.3. See also North River Ins. Co. v.
Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).
To constitute "newly discovered evidence," the evidence must have
been previously unavailable. See ACandS, 5 F.3d at 1263; Javetz v.
Board of Control, Grand Valley State Univ. 903 F. Supp. 1181, 1191
(W.D. Mich. 1995)(and cases cited therein); Charles A. Wright, 11
Federal Practice and Procedure § 2810.1 at 127-28 (1995).
Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v.
Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United
States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).
Thus, parties should not use them to raise arguments which could and should have been made
before judgment issued. Id.; McBride v. Skipper, 76 F.4th 509 (6th Cir. Aug. 4, 2023). Howard v.
United States, 533 F.3d 472, 475 (6th Cir. 2008) (“[A] petitioner fil[ing] a Rule 59(e) motion . . . may
request only that the district court reconsider matters actually raised before it. This is because, as this
court has repeatedly held, Rule 59(e) motions cannot be used to present new arguments that could have
been raised prior to judgment.”).
Motions under Rule 59(e) must establish either a manifest error of law or must present
newly discovered evidence. Id. In ruling on an Fed.R.Civ.P. 59(e) motion, “courts will not address
new arguments or evidence that the moving party could have raised before the decision issued.
See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163-164
(3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U. S. 471, 485-486, n.
5 (2008) (quoting prior edition).” Banister v. Davis, 590 U.S. 504 (2020).
Petitioner’s Motion to Amend does not meet this standard. In fact, it makes no argument
at all as to why the Court’s judgment embodies a “manifest error” of law. Petitioner has now had
three months to make any substantive arguments showing error in the Report and has not done so.
His Motion to Amend should therefore be denied. This recommendation renders his Motion to
Appoint Counsel moot and it is hereby DENIED.
December 10, 2024.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.