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Harvey v. United States

United States District Court, W.D. Kentucky, Bowling Green

January 9, 2017



          Thomas B. Russell, Senior Judge

         This 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.


         Harvey, 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.]

         On June 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. [See id.]


         Although 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).

         A. Jurisdictional Issues

         Before it may properly consider Harvey's motion, however, the Court must address two preliminary jurisdictional issues.

         1. Pending Appeal

         The 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 ...

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