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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RENNEL PITTS,

Petitioner, Civil Action No. 2:09-12329

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT COURT

C. ZYCH,

Respondent,

_____________________________________/

OPINION AND ORDER DENYING THE MOTION 

TO ALTER OR AMEND THE JUDGMENT

On June 19, 2009, this Court denied Petitioner’s application for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2241. See Pitts v. Zych, No. 2009 WL 1803208 (E.D.

Mich. June 19, 2009). Petitioner has now filed a motion to alter or amend the judgment

pursuant to Fed.R.Civ.P. 59(e). For the reasons stated below, the motion to alter or

amend the judgment is DENIED.

Federal Rule of Civil Procedure 59(e) provides: “Any motion to alter or amend a

judgment shall be filed no later than 10 days after entry of the judgment.” The decision to

grant relief under Rule 59(e) is discretionary with the district court. Davis by Davis v.

Jellico Cmty. Hosp., Inc., 912 F. 2d 129, 132 (6th Cir. 1990). A federal district court

judge, however, has discretion to grant a motion to alter or amend judgment only in very

narrow circumstances:

1. to accommodate an intervening change in controlling law;

2. to account for new evidence which was not available at trial; or;

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3. to correct a clear error of law or to prevent manifest injustice.

Kenneth Henes Special Projects Procurement v. Continental Biomass Industries,

Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000).

In addition, Rule 59 motions “are not intended as a vehicle to relitigate previously

considered issues; should not be utilized to submit evidence which could have been

previously submitted in the exercise of reasonable diligence; and, are not the proper

vehicle to attempt to obtain a reversal of a judgment by offering the same arguments

previously presented.” Kenneth Henes, 86 F. Supp. 2d at 726 (internal quotation omitted).

A motion to alter or amend judgment brought by a habeas petitioner pursuant to

Rule 59 (e) may properly be analyzed as a motion for reconsideration pursuant to Local

Rule 7.1 of the Eastern District of Michigan. See Hence v. Smith, 49 F. Supp. 2d 547, 550

(E.D. Mich. 1999). U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion

for reconsideration. However, a motion for reconsideration which presents the same

issues already ruled upon by the court, either expressly or by reasonable implication, will

not be granted. Michigan Regional Council of Carpenters v. Holcroft L.L.C. 195 F. Supp.

2d 908, 911 (E.D. Mich. 2002)(citing to U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (g)(3)). A

motion for reconsideration should be granted if the movant demonstrates a palpable

defect by which the court and the parties have been misled and that a different disposition

of the case must result from a correction thereof. Id. A palpable defect is a defect that is

obvious, clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F. Supp. 426, 427

(E.D. Mich. 1997).

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Petitioner contends that this Court erred in determining that review of the Bureau

of Prisons’ (BOP) decision to deny Petitioner a sentence reduction pursuant to §

3621(e)(2)(B) was not governed by the Administrative Procedure Act (APA). However,

as this Court noted in its original decision, 18 U.S.C. § 3625 provides that 5 U.S.C. §§

554, 555, and 701-706, the judicial review and notice and comment provisions of the

APA, “do not apply to the making of any determination, decision or order” made by the

BOP pursuant to the provisions of 18 U.S.C. §§ 3621, et seq. See e.g. Orr v. Hawk, 156 F.

3d 651, 655, n. 1 (6th Cir. 1998)(BOP exempt from the judicial review and notice and

comment provisions of the APA); See also Davis v. Beeler, 966 F. Supp. 483, 489-90

(E.D. Ky. 1997). 

Petitioner’s motion to alter or to amend the judgment is denied; Petitioner is

merely presenting issues which were already ruled upon by this Court, either expressly or

by reasonable implication, when the Court summarily dismissed the Petition for Writ of

Habeas Corpus. Hence, 49 F. Supp. 2d at 553.

ORDER

Based upon the foregoing, IT IS ORDERED that the motion to alter or amend the

judgment [Dkt. # 6] is DENIED.

/s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 11, 2009

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The undersigned certifies that a copy of this

document was served on the attorneys of record

and Rennel Pitts by electronic means or U.S. Mail

on August 11, 2009.

s/Linda Vertriest 

Deputy Clerk

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