Shoopman v. U.S.

Full title: STEVEN DALE SHOOPMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Sep 9, 2002

Civil Case No: 97-75298, Criminal Case No: 96-80378 (E.D. Mich. Sep. 9, 2002)

Opinion

Civil Case No: 97-75298, Criminal Case No: 96-80378

September 9, 2002

Steven Shoopman #19794-039, USP Florence, Florence, Colorado.

Robert w. Haviland, Assistant United States Attorney, Flint, MI.

MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, United States District Judge

Petitioner has filed a motion pursuant to Fed.R.Civ.P. 59(e), requesting that this Court reconsider its Order denying Petitioner's previous motion to amend the judgment that he filed pursuant to Fed.R.Civ.P. 60(b)(5) and (6).¹ Because Petitioner fails to raise issues not previously considered by this Court, Petitioner's motion must be DENIED.

1 The Court considered the merits of Petitioner's Fed.R.Civ.P. 60 (b)(5) motion instead of construing the motion as one properly brought under 28 U.S.C. § 2255. This Court notes that Rule 60(b)(5) applies only to civil cases. In light of this fact, Petitioner has indicated a desire to withdraw his Rule 60(b)(5) motion and instead file a motion pursuant to 18 U.S.C. § 3582 (c) seeking a modification of his sentence. This Court has already considered the merits of Petitioner's claims. A motion brought pursuant to § 2255 is the proper vehicle for the relief Petitioner requests. As Petitioner has previously filed such motion in this Court, he must receive permission from the Sixth Circuit Court of Appeals to file a second or successive § 2255 motion. 28 U.S.C. § 2244 (b)(1).

In Petitioner's motion to amend the judgment, he argued that Apprendi v. New Jersey, 530 U.S. 466 (2000), prohibited the Court from applying two levels to his base offense level because a firearm he possessed had been stolen. He contended that the government failed to include the fact of a stolen firearm in the indictment against him and because that fact increased his sentence beyond the statutory maximum, the sentence violated Apprendi. In rejecting these arguments, this Court held thatApprendi is inapplicable because Petitioner was sentenced well within the statutory maximum sentence. In Petitioner's instant motion for reconsideration of that opinion, Petitioner reasserts claims set forth in his previous motion and endeavors to more fully develop the arguments he raised before to demonstrate to the Court Apprendi's applicability to his conviction and sentence.

Local Rule 7.1(g)(3) states that ". . . without restricting the Court's discretion, the Court will not grant motions for rehearing or reconsideration that merely present the same issues relied upon by the Court, either expressly or by reasonable implication." Therefore, because Petitioner fails to raise issues not previously considered by this Court in accordance with Local Rule 7.1(g), Petitioner's motion is denied.

Accordingly, Petitioner's motion is hereby DENIED.