Gianfortuna v. Warden, No. 2:2013cv12105 - Document 5 (E.D. Mich. 2013)
Court Description: OPINION AND ORDER denying 4 Motion for Reconsideration. Signed by District Judge George Caram Steeh (MBea)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PHILIP GIANFORTUNA, Petitioner, Case Number 2:13-cv-12105 Honorable George Caram Steeh v. WARDEN, Respondent. ________________________________/ OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION [Dkt. 4] Petitioner, Philip Gianfortuna, a federal prisoner, filed this case under 28 U.S.C. § 2241. On May 23, 2013, the Court summarily denied the petition. Petitioner has filed a motion for reconsideration. He argues that he has already been denied relief under 28 U.S.C. § 2255, and therefore the Court erred in finding that his claims can only properly be brought under that section. Local Rule 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. Ford Motor Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). The movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that a different disposition of the case must result from a correction thereof. 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). 28 U.S.C. § 2241 is not an additional, alternative, or supplemental remedy to the -1- motion to vacate, set aside, or correct the sentence under §2255. Robinson v. Hemingway, 175 F. Supp. 2d 915, 916 (E.D. Mich. 2001). The mere fact that a prior motion to vacate sentence may have proven unsuccessful does not necessarily meet the burden fo showing that a petitioner s remedy under § 2255 is ineffective. In Re Gregory, 181 F. 3d 713, 714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or ineffective simply because § 2255 relief has already been denied, or because petitioner has been procedurally barred from pursuing relief under § 2255, or because the petitioner has been denied permission to file a second or successive motion to vacate sentence. Charles v. Chandler, 180 F. 3d 753, 756 (6th Cir. 1999). Thus, the mere fact that the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) might prevent Petitioner from filing a second or successive motion to vacate or set aside the sentence, in the absence of newly discovered evidence or a new rule of constitutional law, would not render the remedy provided by such motion inadequate or ineffective to allow him to petition for habeas corpus relief under 28 U.S.C. § 2241. Hervey v. United States, 105 F. Supp. 2d 731, 733 (E.D. Mich. 2000). Similarly, a habeas petitioner's § 2255 remedy is not inadequate merely because the petitioner permitted the AEDPA's one year statute of limitations to expire. Charles, 180 F. 3d at 758. Accordingly, Petitioner s motion for rehearing is therefore DENIED. So ordered. Dated: October 4, 2013 s/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE -2- CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on October 4, 2013, by electronic and/or ordinary mail and also on Phillip Gianfortuna #26367-039 Milan Federal Correctional Institution, Inmate Mail/Parcels, P. O. Box 1000, Milan, MI 48160. s/Barbara Radke Deputy Clerk -3-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
