United States District Court, M.D. Pennsylvania
RODNEY O. MCINTOSH, Petitioner
UNITED STATES OF AMERICA, Respondent
before the Court is Petitioner's motion for
reconsideration (Doc. No. 8), of this Court's August 15,
2017 Order dismissing Petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C. §
2241. (Doc. No. 7.) For the reasons that follow,
Petitioner's motion for reconsideration will be denied.
Court previously summarized the background of this case in
its August 15, 2017 Memorandum (Doc. No. 6), wherein the
On July 17, 2017, the Court received and filed a petition for
writ of habeas corpus submitted pursuant to 28 U.S.C. §
2241 from pro se Petitioner Rodney O. McIntosh, a
federal inmate presently confined at the United States
Penitentiary, Lewisburg, Pennsylvania. (Doc. No. 1.)
Petitioner states that on October 6, 2011, a grand jury
charged him with forcible assault. (Id.) In
Petitioner's instant petition, he argues that the United
States District Court for the District of Kansas failed to
separate the elements of “forcible assault” and
“physical contact” when instructing the jury, and
as such, violated his due process rights. (Id.)
Petitioner seeks to be released from incarceration.
A review of the petition, as well as PACER, the online
national index providing public access to court electronic
records, reveals that Petitioner previously filed a motion to
vacate, set aside, and correct sentence pursuant to 28 U.S.C.
§ 2255 with the United States District Court for the
District of Kansas. See United States v. McIntosh,
No. 15-2909, 2016 WL 4159723 (D. Kan. Aug. 5, 2016)
(dismissing § 2255 petition and denying certificate of
(Doc. No. 6) (footnote omitted).
instant motion for reconsideration, Petitioner argues that
this Court “misrepresented the record” by stating
that, in his habeas petition, Petitioner argued that the
“U.S. District Court for the [District] of [Kansas]
failed to ‘separate' the elements” of
forcible assault and physical contact when instructing the
jury. (Doc. No. 8 at 1.) Petitioner maintains that he instead
argued that the District Court in Kansas failed to
“submit the element of forcibly assault” to the
jury. (Id.) Petitioner further asserts
that this alleged misrepresentation invokes the savings
motion for reconsideration under Rule 59(e) is a device of
limited utility, which may “not be used as a means to
reargue matters already argued and disposed of or as an
attempt to relitigate a point of disagreement between the
Court and the litigant.” Ogden v. Keystone
Residence, 226 F.Supp.2d 588, 606 (M.D. Pa. 2002)
(citations omitted); see also Baker v. Astrue, No.
CIV. A. 07-4560, 2008 WL 4922015, at *1 (E.D. Pa. Nov. 17,
2008). Rather, a court may alter or amend its judgment only
upon a showing from the movant of one of the following:
“(1) an intervening change in the controlling law; (2)
the availability of new evidence . . . or (3) the need to
correct a clear error of law or fact or to prevent manifest
injustice.” Max's Seafood Cafe v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing
North River Ins. Co. v. CIGNA Reinsurance Co., 52
F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration
is appropriate when a court has “patently misunderstood
a party, or has made a decision outside the adversarial
issues presented to the [c]ourt by the parties, or has made
an error not of reasoning but of apprehension.”
Rohrbach v. AT&T Nassau Metals Corp., 902
F.Supp. 523, 527 (M.D. Pa. 1995) (quoting Above the Belt,
Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983)), vacated in part on other grounds on
reconsideration, 915 F.Supp. 712 (M.D. Pa. 1996). It may
not be used as a means to reargue unsuccessful theories, or
argue new facts or issues that were not presented to the
court in the context of the matter previously decided.
Drysdale v. Woerth, 153 F.Supp.2d 678, 682 (E.D. Pa.
2001). “Because federal courts have a strong interest
in the finality of judgments, motions for reconsideration
should be granted sparingly.” Continental Cas. Co.
v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.
case, Petitioner fails to satisfy the above exacting
standards. As the Court explained in its prior Memorandum:
Petitioner challenges the imposition of his sentence, not its
execution. Therefore, to proceed under § 2241, he must
demonstrate that a § 2255 motion “is inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). Petitioner has not met this burden.
His claim does not fall within the purview of the savings
clause, as he has not demonstrated that an intervening change
in the law made his underlying conviction non-criminal, but
that he had no prior opportunity to challenge his conviction
and could not satisfy the stringent standard for filing a
second or successive § 2255 motion. In fact, in his
previously filed § 2255 petition, the United States
District Court for the District of Kansas specifically
addressed the claim Petitioner now brings in his instant
habeas petition, i.e., whether the [C]ourt should
have separated the elements ...