United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
Robert Ellis, a federal prisoner proceeding pro se,
filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence (w§ 2255
Motion, " ECF No. 29). By Memorandum Opinion and Order
entered November 26, 2014, the Court denied Ellis's
§ 2255 Motion. See United States v. Ellis, No.
3:10CR228, 2014 WL 6712748, at *8 (E.D. Va. Nov. 26, 2014.)
On December 3, 2014, Ellis filed a motion seeking relief
under Fed.R.Civ.P. 59(e) ("Rule 59(e) Motion, " ECF
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (citation omitted) (internal quotation marks omitted).
The United States Court of Appeals for the Fourth Circuit
recognizes three grounds for relief under Rule 59(e): Ml) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest
injustice." Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v.
Koppers Co.; 771 F.Supp. 1406, 1419 (D. Md. 1991);
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625,
626 (S.D.Miss. 1990)).
fails to demonstrate any basis for granting relief under Rule
59(e). Rather, Ellis raises, for the first time, two new
claims for relief. First, Ellis suggests that he is entitled
to relief because of "the failure to Magistrate Dohnal
to acquire a district judge's authorization to preside
over the Rule 11 hearing." (Rule 59(e) Mot. 3.) Second,
Ellis contends that he is entitled to relief "on the
basis of the denial of his right to have defense counsel
present during his initial appearance, and arraignment."
(Id. (emphasis omitted).) However, a "'Rule
59(e) motion may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been
raised prior to the entry of judgment.'" Pac.
Ins. Co., 148 F.3d at 403 (quoting 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1810.1, at 127-28 (2d ed. 1995)).
event, Ellis's new arguments lack merit. With respect to
his claim that his conviction is invalid because Magistrate
Judge Dohnal failed to obtain authorization from the
undersigned to preside over Ellis's Rule 11 proceedings,
Ellis cites United States v. Harden, 758 F.3d 886,
891 (7th Cir. 2014), for support. In Harden, the
United States Court of Appeals for the Seventh Circuit held
that, even when the defendant consents, a magistrate
judge's acceptance of a guilty-plea in a felony case
violates the Federal Magistrate Act and therefore is not
authorized. 758 F.3d at 891. However, Ellis's argument is
foreclosed by the United States Court of Appeals for the
Fourth Circuit's decision in United States v.
Benton, 523 F.3d 424 (4th Cir. 2008), in which the
Fourth Circuit held that the Federal Magistrate Act
authorizes magistrate judges to accept a guilty plea and find
a defendant guilty when, as in Ellis's matter, "the
parties have consented to the procedure" and the
district court retains "ultimate control . . . over the
plea process." Id. at 433; cf. Harden,
758 F.3d at 891 (noting that the Fourth, Tenth, and Eleventh
Circuits "authorize magistrate judges to accept felony
guilty pleas with the parties' consent").
respect to Ellis's claim that he was denied his right to
have counsel present during his initial appearance and
arraignment, the record clearly reflects that John
Rockecharlie appeared on behalf of Ellis at Ellis's
combined arraignment and detention hearing. (See ECF
No. 8, at 1; ECF No. 9, at 1.) Moreover, " [a]lthough it
is true that [an] initial appearance is what triggers the
right to counsel, that does not mean that [a defendant] has
the right to counsel at that appearance. Indeed, the initial
appearance is typically precisely where a defendant invokes
their right to counsel." Walker v. United
States, No. 4:95CR37(3), 2014 WL 4388253, at *3 (E.D.
Va. Sept. 4, 2014) (citations omitted). At Ellis's
initial appearance, he was informed that he had the right to
counsel. Ellis was then represented by counsel at all
foregoing reasons, Ellis's Rule 59(e) Motion (ECF No. 53)
will be denied. A certificate of appealability will be
Clerk is directed to send a copy of this Memorandum Opinion
to Ellis and counsel of record.
 This is the date Ellis states he
placed his Rule 59(e) Motion in the prison mailing system
(Rule 59(e) Mot. 16), and the Court deems this the filed
date. See Houston v. ...