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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TERRY PATTERSON, 

 CASE NO. 2:13-CV-00033 

Petitioner, CRIM. NO. 2:12-CR-00044 

 JUDGE ECONOMUS

v. MAGISTRATE JUDGE ABEL

UNITED STATES OF AMERICA, 

Respondent. 

OPINION AND ORDER

On May 13, 2013, final judgment was entered dismissing the instant motion to 

vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter now is before the 

Court on Petitioner’s June 10, 2013, Motion for Reconsideration of the final judgment of 

dismissal, and his October 7, 2013, Supplement to his Motion for Reconsideration. Doc. Nos. 

39, 42. For the reasons that follow, Petitioner’s motion for reconsideration, Doc. Nos. 39, 42, is 

DENIED. 

Petitioner brings this motion pursuant to Rule 59(e) of the Federal Rules of Civil 

Procedure, which provides: 

(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new 

trial on all or some of the issues--and to any party--as follows: 

(A) after a jury trial, for any reason for which a new trial has 

heretofore been granted in an action at law in federal court; or 

(B) after a nonjury trial, for any reason for which a rehearing has 

heretofore been granted in a suit in equity in federal court. 

(2) Further Action After a Nonjury Trial. After a nonjury trial, the 

court may, on motion for a new trial, open the judgment if one has 

been entered, take additional testimony, amend findings of fact and 

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conclusions of law or make new ones, and direct the entry of a new 

judgment. 

(b) Time to File a Motion for a New Trial. A motion for a new trial 

must be filed no later than 28 days after the entry of judgment. 

(c) Time to Serve Affidavits. When a motion for a new trial is 

based on affidavits, they must be filed with the motion. The 

opposing party has 14 days after being served to file opposing 

affidavits. The court may permit reply affidavits.

(d) New Trial on the Court's Initiative or for Reasons Not in the 

Motion. No later than 28 days after the entry of judgment, the 

court, on its own, may order a new trial for any reason that would 

justify granting one on a party's motion. After giving the parties 

notice and an opportunity to be heard, the court may grant a timely 

motion for a new trial for a reason not stated in the motion. In 

either event, the court must specify the reasons in its order. 

(e) Motion to Alter or Amend a Judgment. A motion to alter or 

amend a judgment must be filed no later than 28 days after the 

entry of the judgment.1

 

In this motion, however, Petitioner raises the same arguments he previously presented. 

He contends that he couches his claims in terms of ineffective assistance of counsel, and that the 

Court therefore improperly concluded he had procedurally defaulted his claims. He complains 

that the Court failed to address the merits of his claims, “instead focusing solely on” his failure to 

appeal. Motion for Reconsideration, PageID #97. Petitioner argues at length that his sentence 

constitutes cruel and unusual punishment in violation of the Eighth Amendment. In support of 

this argument, he refers to United States v. Blewett, 719 F.3d 482 (6th Cir. 2013)(defendant 

sentenced prior to effective date of Fair Sentencing Act entitled to reduction of sentence based 

 

1 The United States Court of Appeals for the Sixth Circuit has held that the limitations on successive motions under 

rule 60(b) of the Federal Rules of Civil Procedure does not apply to motions under Rule 59(e). See Howard v. 

United States, 533 F.3d 472 (6th Cir. 2008). Therefore, this Court may address the merits of Petitioner’s motion 

under Rule 59. 

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on Act’s reduction of sentences on crack cocaine offenses), Rehearing en Banc Granted, 

Opinion Vacated (July 11, 2013), and United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 

2011)(referred to by this Court in its final judgment of dismissal of this case). Petitioner also 

again argues that the Court lacked jurisdiction due to a lack of connection between the crime 

charged, receipt of visual depictions involving the use of minors engaging in sexually explicit 

conduct using a means or facility of interstate commerce, and interstate commerce. 

Petitioner raises no new arguments that have not previously already been considered, and 

this Court will not again address these arguments here. Contrary to Petitioner’s argument herein, 

the Court addressed the merits of his allegations, albeit in the context of the claim of ineffective 

assistance of counsel. Additionally, United States v. Blewett does not assist Petitioner. As 

previously explained, neither does United States v. C.R. Aside from C.R., this this Court is 

aware of, and Petitioner has not referred to, any federal cases that assist him in establishing that 

his sentence violates the Eighth Amendment or that his attorney performed in a constitutionally 

ineffective manner by failing to raise such an issue. Similarly, again as previously discussed, the 

United States Court of Appeals for the Sixth Circuit and other federal courts have affirmed the 

constitutionality of the statute under which Petitioner was convicted, and Petitioner’s attorney 

likewise did not perform in a constitutionally unreasonable manner by failing to raise such an 

issue. This Court has reviewed all of the cases referred to by Petitioner, including those he refers 

to in his supplement to his Rule 59 motion. Nonetheless, the Court remains unpersuaded that 

any of those cases assist Petitioner in obtaining the relief he seeks. 

Petitioner’s Rule 59 motion, Doc. Nos. 39, 42, therefore is DENIED. Further the Court 

certifies that any appeal would not be taken in good faith, and denies a certificate of appealability 

pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States 

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District Courts.

IT IS SO ORDERED.

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