Opinion
Case No. 2:14-cv-266
02-21-2019
STEPHEN BYERLY, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION Respondent.
Magistrate Judge King ORDER
Petitioner initiated this action on March 19, 2014. Motion for Leave to Proceed in Forma Pauperis, ECF No. 1. This Court construed the action as one seeking a writ of habeas corpus under § 2254. Opinion and Order, ECF No. 18. Because Petitioner sought to challenge his conviction in a state court located in Richland County, Ohio, the action was transferred to the United States District Court for the Northern District of Ohio on June 2, 2014. Order, ECF No. 19.
Petitioner has filed two other civil actions in this Court. On July 18, 2012, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Byerly v. Warden, Ross Corr. Inst., 2:12-cv-0626 (S.D. Ohio 2012). Because petitioner sought to challenge a conviction by a state court located in Richland County, Ohio, that action was transferred to the United States District Court for the Northern District of Ohio on July 12, 2012. Id., Order, ECF No. 2. On April 19, 2013, Petitioner filed another action in this Court, which this Court construed as a civil rights action under 42 U.S.C § 1983. Byerly v. Ross Corr. Inst., No. 2:13-cv-0411 (S.D. Ohio). On March 10, 2015, defendants were granted summary judgment in that action and it was dismissed. Id., Opinion and Order, ECF No. 65; Judgment, ECF No. 66. The Court of Appeals for the Sixth Circuit subsequently affirmed that judgment. Byerly v. Bradley, No. 15-3735 (6th Cir. Jan. 21, 2016).
Plaintiff has sought reconsideration of this Court's characterizations of the action and of this Court's disposition of the action. Motion for De Novo Review, ECF No. 20; Motion to Clarify Docket Entries, ECF No. 27. Both motions were denied. Order, ECF No. 21; Order, ECF No. 28. This matter is now before the Court on petitioner's May 22, 2018, motion for reconsideration. Motion for Reconsideration Clarification/Docklet F .R.C.P. - 59(e) [sic], ECF No. 29.
Although the motion also reflects the case number of petitioner's civil rights action, Byerly v. Ross Correctional Inst., 2:13-cv-411 (S.D. Ohio), Petitioner's motion was docketed only in this case. However, an identical motion was previously filed in that civil rights action and was denied by this Court. Id., Order, ECF No. 93. --------
A motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure must be filed "no later than 28 days after the entry of the judgment." Id. As the procedural history of this case makes clear, petitioner's motion is untimely.
Petitioner also asks that a three-judge panel be convened. Because a three-judgment panel is not authorized under the circumstances presented in this case, see 28 U.S.C. § 2284, petitioner's request in this regard is without merit.
In short, petitioner's Motion for Reconsideration Clarification/Docklet F .R.C.P. - 59(e) [sic], ECF No. 29, is DENIED.
IT IS SO ORDERED. 2-21-2019
Date
/s/_________
Edmund A. Sargus, Jr.
Chief United States District Judge