United States District Court, W.D. Kentucky, Bowling Green
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge
matter is before the Court on Petitioner Tony Glen
Harvey's Motion to Reconsider. [DN 202.] The United
States did not respond. This matter is now ripe for
adjudication. For the following reasons, Petitioner's
motion is DENIED.
a federal prisoner, was found guilty, after a jury trial, of
two crimes: transporting a minor in interstate commerce with
intent to engage in sexual activity and brandishing a firearm
in furtherance of a crime of violence. [DN 101.] He was
sentenced to 324 and 84 months in prison, respectively.
[Id.] The Sixth Circuit Court of Appeals affirmed
both the convictions and sentence. [DN 143.] Harvey then
filed a Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255. [DN 145.] This Court referred
the matter to Magistrate Judge Brennenstuhl for findings of
fact, conclusions of law, and recommendations. [DN 150.]
Harvey later filed a motion to amend his petition to add an
additional claim of prosecutorial misconduct, [DN 154], which
the Magistrate Judge granted. [DN 168.]
9, 2016, this Court issued an Order [DN 194] and Judgment [DN
195] adopting the Magistrate Judge's Findings of Fact and
Conclusions of Law [DN 189] and denying Harvey's §
2255 motion to vacate. [DN 145; 154.] The Court further
denied a certificate of appealability as to each claim
asserted in Harvey's motion to vacate. [DN 194; 195.] On
June 21, 2016, Harvey filed Notice of Appeal to the Sixth
Circuit. [DN 196.] After Harvey's appointed counsel also
filed an appeal to the Sixth Circuit [DN 197], the Sixth
Circuit dismissed the first appeal (Case No. 16-5895) as
duplicative of the second (Case No. 16-5910). [DN 199.] Case
No. 16-5910 remains pending in the appellate court. On July
11, 2016, thirty-two (32) days after this Court dismissed his
habeas petition, Harvey filed a Motion for Reconsideration of
this Court's denial of his petition and further requested
an evidentiary hearing, copies of investigatory reports
relating to alleged misconduct by the Barren County
Sherriff's Office, appointment of counsel for an
evidentiary hearing, and copies of correspondence between his
appointed counsel and the prosecutor from a previous
evidentiary hearing. [DN 202.] Harvey claims, primarily,
error resulting from his inability to present evidence of his
claims of prosecutorial misconduct at an evidentiary hearing.
the Federal Rules of Civil Procedure do not provide expressly
for “motions for reconsideration, ” courts
generally construe such motions as motions to alter or amend
a judgment under Rule 59(e). E.g., Moody v.
Pepsi-Cola Metro. Bottling Co., 915 F.2d 201, 206 (6th
Cir. 1990); Taylor v. Colo. State Univ., Civil
Action No. 5:11-CV-00034-TBR, 2013 WL 1563233, at *8-9 (W.D.
Ky. Apr. 12, 2013). Rule 59(e) motions “must be filed
no later than 28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). Here, however, Harvey filed the instant
motion 32 days after judgment was entered. The Sixth Circuit
has explained that “[a] motion for reconsideration,
filed outside the time permitted under Fed.R.Civ.P. 59(e), is
properly construed as a motion for relief from judgment,
pursuant to Fed.R.Civ.P. 60(b).” Donaldson v. Cent.
Michigan Univ., 109 F. App'x 15, 17 (6th Cir. 2004)
(citing Feathers v. Chevron U.S.A., Inc.,
141 F.3d 264, 268 (6th Cir. 1998)). Accordingly, here, the
Court will construe Harvey's motion for reconsideration
as one for relief from a judgment or order under Rule 60(b).
it may properly consider Harvey's motion, however, the
Court must address two preliminary jurisdictional issues.
first issue is whether this Court can consider a Rule 60(b)
motion given that an appeal is currently pending in the Sixth
Circuit. Generally, “[t]he traditional rule is that
‘a timely appeal divests the district court of
jurisdiction to reconsider its judgment until the case is
remanded by the Court of Appeals.'” Dunham v.
United States, 486 F.3d 931, 935 (6th Cir. 2007)
(quoting Pittock v. Otis Elevator Co., 8 F.3d 325,
327 (6th Cir. 1993)). In 2009, however, Rule 62.1 of the
Federal Rules of Civil Procedure went into effect and
provides, in relevant part:
Rule 62.1. Indicative Ruling on a Motion for Relief
That Is Barred by a Pending Appeal
(a) Relief Pending Appeal. If a timely
motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and ...