IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES GOVERNMENT, )

 )

v. ) CIVIL ACTION NO. 09-00116-KD-N

 ) CRIMINAL ACTION NO. 05-00267-KD-N

CLENNON PREYEAR, )

Petitioner. )

ORDER

This matter is before the Court on Petitioner Preyear’s pro se Rule 59(e) Motion to Alter or

Amend Judgment (Doc. 584) and the Government’s Response (Doc. 586). Preyear contends that

the July 28, 2010 Order and Judgment (Docs. 581, 582) – in which the Court adopted the Report and

Recommendation of the Magistrate Judge and denied his Section 2255 habeas petition – was a

judgment based on manifest error of law or fact. 

As stated in Fetterhoff v. Liberty Life Assur. Co., 2007 WL 1713349, *1 (S.D. Ala. Jun. 11,

2007) (internal citations omitted and emphasis in original):

The decision whether to alter or amend a judgment pursuant to Rule 59(e) is

"committed to the sound discretion of the district judge." . . . : 

A motion to alter or amend a judgment must demonstrate why the

court should reconsider its prior decision and "set forth facts or law

of a strongly convincing nature to induce the court to reverse its prior

decision." . . . . courts have recognized three grounds justifying

reconsideration of an order: (1) an intervening change in controlling

law; (2) the availability of new evidence; and (3) the need to correct

clear error or manifest injustice. . . . . Reconsideration of a previous

order is an extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial resources . .

. 

See also e.g., Sonnier v. Computer Programs & Systems, Inc., 168 F. Supp. 2d 1322, 1336 (S.D. Ala.

2001). It is well settled that a Rule 59(e) motion may not be used to relitigate old matters or to

present arguments or evidence that could have been raised prior to judgment. Shaarbay v. Florida,

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 Also, to the extent Preyear contends that the Court should have considered the “Final Response”

he filed eight (8) days after the Order and Judgment were issued (Doc. 583), such Response was untimely. 

And Preyear’s motion for an extension of time to file Objections (Doc. 578) was made moot by the fact

that he filed his Objections (Doc. 579). (Doc. 580). 

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269 Fed. Appx. 866 (11th Cir. 2008).

Preyear’s Rule 59(e) motion reasserts the same claims that he raised in his Section 2255

petition, summary judgment motion and supplemental claim (Docs. 519, 522, 543, 552, 563, 567),

which the Magistrate Judge addressed at length in the Report & Recommendation (Doc. 577). In

support, Preyear contends that the Court’s July 28, 2010 Order adopting the Report &

Recommendation of the Magistrate Judge was based on “manifest errors of law or facts;” that a de

novo review was not conducted by the Court; and that an intervening change in the law would make

equitable tolling applicable to his supplemental claim (disputing the Magistrate Judge’s authority

to declare a mistrial during jury selection and empanel another jury).1

 Despite Preyear’s assertion,

the record clearly shows that the Court conducted a de novo review (Doc. 581). Additionally, fatal

to his Rule 59(e) motion, Preyear has failed to demonstrate any manifest errors of law or fact in the

Report & Recommendation and/or that there has been any intervening change in the law that results

in manifest injustice to him unless the Order and Judgment are altered or amended. In sum, Preyear

has not set forth any basis for Rule 59(e) relief. 

Accordingly, it is ORDERED that Preyear’s motion (Doc. 585) is DENIED.

DONE and ORDERED this the 2nd day of September 2010.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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