Keith v. Bobby

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0273p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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KEVIN KEITH,
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Petitioner-Appellant,
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No. 09-3871
v.
,
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Respondent-Appellee. -
DAVID BOBBY, Warden,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-01687—Peter C. Economus, District Judge.
Argued: August 3, 2010
Decided and Filed: August 31, 2010
Before: BOGGS, CLAY, and GIBBONS, Circuit Judges.

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COUNSEL
ARGUED: David E. Mills, THE MILLS LAW OFFICE, Cleveland, Ohio, for
Appellant. Seth P. Kestner, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Rachel G. Troutman, Tyson L. Fleming I,
OHIO PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Seth P.
Kestner, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
BOGGS, J., delivered the opinion of the court. CLAY (p. 11), and GIBBONS
(p. 12), JJ., delivered separate opinions concurring in the judgment.
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OPINION
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BOGGS, Circuit Judge. Kevin Keith filed a petition for habeas corpus in federal
district court. The district court concluded that the petition was “second or successive”
and transferred Keith’s case to this court for determination of whether Keith should be

1
No. 09-3871 Keith v. Bobby Page 2

permitted to file the petition under 28 U.S.C. § 2244(b). This court denied Keith
permission to file his petition. See Keith v. Bobby, 551 F.3d 555 (6th Cir. 2009). Keith
thereafter filed a motion in the district court under Federal Rule of Civil Procedure 59(e)
asking the district court to reconsider its order transferring the matter to this court. The
district court denied Keith’s motion both because the motion was untimely and because
the court again concluded that Keith’s petition was “second or successive.” Keith now
appeals the decision of the district court. Because we conclude that Keith’s Rule 59(e)
motion was untimely, and because this court’s order barred the district court from
reconsidering whether Keith’s petition was “second or successive,” we affirm the order
of the district court.

I

Our prior decisions have provided a full review of the facts and procedural
history of Keith’s case, see Keith, 551 F.3d at 556, 557-59; Keith v. Mitchell, 455 F.3d
662, 665-68 (6th Cir. 2006), so we will set forth only a brief summary here. In February
1994, a gunman killed Marichell Chatman, Linda Chatman, and seven-year-old Marchae
Chatman, and wounded Richard Warren, Quinita Reeves, and Quinton Reeves. Physical
evidence and witness accounts led Ohio police to Keith, and a grand jury indicted Keith
for three counts of aggravated murder and three counts of attempted aggravated murder.
After a two-week trial, a jury found Keith guilty of all counts. On the jury’s
recommendation, the trial court imposed a death sentence for each of the aggravated
murder counts.

Keith filed a direct appeal in the Ohio Court of Appeals and, subsequently, in the
Ohio Supreme Court, but both courts affirmed Keith’s conviction and sentence. See
State v. Keith, 684 N.E.2d 47 (Ohio 1997); State v. Keith, No. 3-94-14, 1996 WL 156710
& 1996 WL 156716 (Ohio Ct. App. Apr. 5, 1996). Keith then unsuccessfully pursued
post-conviction relief in Ohio state court. See State v. Keith, No. 98-2057, 703 N.E.2d
326 (Ohio Dec. 23, 1998) (table); State v. Keith, No. 3-98-05, 1998 WL 487044 (Ohio
Ct. App. Aug. 19, 1998); see also State v. Keith, No. 98-2057, 705 N.E.2d 368 (Ohio
Feb. 3, 1999) (table) (denying reconsideration). Finally, in 1999, Keith filed a petition
No. 09-3871 Keith v. Bobby Page 3

for habeas corpus in the United States District Court for the Northern District of Ohio.
After reviewing the merits of Keith’s petition, the district court denied relief. This court
affirmed. See Keith, 455 F.3d at 662.

In 2008, Keith filed a second petition for habeas corpus in the district court. The
petition asserted that newly discovered evidence revealed violations of Brady v.
Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959). The petition
acknowledged that 28 U.S.C. § 2244(b)(3) required Keith to obtain permission from the
court of appeals before filing a “second or successive” petition, but argued that Keith did
not need to satisfy this requirement because his new petition did not fall within the
meaning of “second or successive.”

On July 17, 2008, the district court entered an “Order of Transfer” in which the
court rejected Keith’s contention that his petition was not “second or successive.”
Following the procedure established in In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), the
district court transferred the matter to this court for initial consideration.

Once this court received Keith’s petition, the clerk of the court instructed Keith
to file a proper application for permission to file a second or successive petition. In
response, Keith filed a “corrected second or successive motion.” Attached to that
motion, Keith provided a supporting memorandum and a revised version of his petition.
Neither Keith’s motion nor the attached memorandum argued that Keith’s petition was
not “second or successive,” and the revised petition did not discuss the issue, which had
been adverted to in the district court filing.

On January 13, 2009, this panel issued an order denying Keith’s motion to file
a second or successive habeas petition. Keith, 551 F.3d at 556. The panel did not
explicitly address the district court’s finding that Keith’s petition was a “second or
successive” petition for habeas corpus. We focused on whether Keith’s petition
overcame the bar on “second or successive” petitions established by 28 U.S.C.
§ 2244(b). We concluded that Keith’s petition did not overcome that bar because Keith
had not made “a prima facie showing that ‘no reasonable factfinder would have found
No. 09-3871 Keith v. Bobby Page 4

the applicant guilty of the underlying offense.’” Id. at 556 (quoting 28 U.S.C.
§ 2244(b)(2)(B)(ii)).

Thirteen days after this court issued its order, Keith filed a motion in the district
court under Federal Rule of Civil Procedure 59(e) asking the district court to reconsider
its Order of Transfer, entered more than six months earlier. Keith argued that the district
court committed a clear error of law when it determined that Keith’s petition was
“second or successive,” and that the district court should therefore alter its order
transferring the petition to this court. Keith asserted that this court’s January 13 order
did not bar the district court from reconsidering its earlier determination because this
court had not addressed whether Keith’s petition was “second or successive.” Keith
made no effort to apprise this court of the alleged defect in its January 13 order.

On June 24, 2009, the district court issued an order denying Keith’s Rule 59(e)
motion. The district court held that it was not precluded from reconsidering whether
Keith’s petition was “second or successive,” because the “Sixth Circuit never
adjudicated on whether Keith’s petition is a successive petition. Instead, the Sixth
Circuit merely applied § 2244(b) without expressly holding whether Keith’s petition was
subject to its restrictions.” R. 14 at 5. However, the court concluded that Keith’s motion
was untimely because Keith filed it more than six months after the district court issued
its transfer order. R. 14 at 3-5. Further, the court reexamined Keith’s petition and again
concluded that it was a “second or successive” petition for the purposes of 28 U.S.C.
§ 2244(b). R. 14 at 6-9. As a result, the district court refused to alter or amend its Order
of Transfer.

At Keith’s request, the district court issued a certificate of appealability with
respect to the arguments raised in Keith’s Rule 59(e) motion. Keith filed a timely
appeal.
No. 09-3871 Keith v. Bobby Page 5

II

On appeal, Keith claims that the district court erred by denying his Rule 59(e)
motion. We review a district court’s denial of a Rule 59(e) motion for an abuse of
discretion. Betts v. Costco Wholesale Corp., 558 F.3d 461, 467 (6th Cir. 2009). “Abuse
of discretion is defined as a definite and firm conviction that the trial court committed
a clear error of judgment. A district court abuses its discretion when it relies on clearly
erroneous findings of fact, or when it improperly applies the law or uses an erroneous
legal standard.” Ibid. (quoting Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891
(6th Cir. 2004)).

Keith argues that the district court improperly applied the law both when it
determined that his Rule 59(e) motion was untimely and when it reaffirmed its
conclusion that his petition was “second or successive.” With respect to the timeliness
of his Rule 59(e) motion, Keith argues that the district court’s Order of Transfer did not
become a final order until this court issued its denial of Keith’s motion to file a second
or successive habeas petition. Appellant’s Brief at 15-19. As a result, Keith asserts that
the time for filing his Rule 59(e) motion did not begin to run until this court entered its
January 13 order. Ibid. Turning to the district court’s conclusion that his petition was
“second or successive,” Keith contends that his petition was not an “abuse of the writ”
and thus did not fall within the meaning of “second or successive.” Appellant’s Brief
at 20-30.

We hold that the district court did not abuse its discretion when it denied Keith’s
Rule 59(e) motion. First, the district court was correct when it concluded that Keith’s
motion was untimely. Federal Rule of Civil Procedure 59(e) provides that “[a] motion
to alter or amend a judgment must be filed no later than 10 days after the entry of the
judgment.”1 Fed. R. Civ. P. 59(e) (2009). This court has interpreted the term

1
Under Rule 6(a), this ten-day period begins the day after the judgment is filed, and does not
include Saturdays, Sundays, or legal holidays. Fed. R. Civ. P. 6(a) (2009). Rule 59(e) has recently been
amended to expand this time period to twenty-eight days after the entry of judgment. This amendment
was not effective at the time that Keith filed his motion and, even if it had been, Keith’s motion would still
have been untimely.
No. 09-3871 Keith v. Bobby Page 6

“judgment” to refer to a judgment or a final order. See CGH Transp., Inc. v. Quebecor
World, Inc., 261 F. App’x 817, 823 n.10 (6th Cir. 2008); see also Inge v. Rock Fin.
Corp., 281 F.3d 613, 617 (6th Cir. 2002) (“When a party files a motion to reconsider a
final order or judgment within ten days of entry, we will generally consider the motion
to be brought pursuant to Rule 59(e).”). As mandated by the language of Rule 59(e), a
court must look to the date upon which the final order or judgment was entered to
determine whether a Rule 59(e) motion is timely. See Intera Corp. v. Henderson,
428 F.3d 605, 611 (6th Cir. 2005) (“In order for a Rule 59 motion to be deemed ‘timely,’
the motion must be served ‘no later than 10 days after entry of the judgment.’” (quoting
Fed. R. Civ. P. 59(e))).

In this case, the district court entered its Order of Transfer on July 18, 2008, and
Keith filed his Rule 59(e) motion on January 26, 2009–more than six months after the
district court entered its order. Keith’s motion was thus untimely.

Keith’s argument to the contrary–that his motion was timely because the district
court’s order only became a final order when this court entered its January 13
order–ignores the plain language of Rule 59(e). Rule 59(e) states that a motion must be
filed no later than ten days “after the entry of the judgment” (emphasis added), not “after
the judgment becomes final.” This precludes a court from calculating the timeliness of
a Rule 59(e) motion based on any date other than the date on which the relevant final
order or judgment was entered. Moreover, the text of the rule indicates that only the
final order or judgment that the motion seeks to alter or amend can serve as the starting
point for determining timeliness: “A motion to alter or amend a judgment must be filed
no later than 10 days after the entry of the judgment.” Fed. R. Civ. P. 59(e) (2009)
(emphasis added). Rule 59(e) thus prohibits this court from finding that the entry of this
court’s January 13 order served as the starting point for determining the timeliness of
Keith’s motion to alter or amend the district court’s Order of Transfer.2 Additionally,
to the extent that Keith argues that the Order of Transfer was neither a “judgment” nor

2
Further, to the extent that Keith is arguing that his Rule 59(e) motion sought to modify this
court’s final order, it is plain that the district court had no authority to do so.
No. 09-3871 Keith v. Bobby Page 7

a “final order” for the purposes of Rule 59(e), he is incorrect. Barring any further action
by this court, the Order of Transfer ended the litigation in the district court. Just as with
any final order, the litigation could have resumed if this court had determined that
further district court proceedings were appropriate, but not otherwise. Thus, for the
purposes of Rule 59(e), the Order of Transfer was a “final order.”3 To hold otherwise
would render the timeliness requirement of Rule 59(e) essentially meaningless.

What Keith is actually suggesting is that the transfer of his case to this court
tolled the period for filing his Rule 59(e) motion in the district court. Federal Rule of
Civil Procedure 6(b)(2), however, prohibits such tolling, as it provides that “[a] court
must not extend the time to act under” Rule 59(e). Fed. R. Civ. P. 6(b)(2) (2009); see
Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1104 n.1 (6th Cir. 1985) (suggesting that
plaintiffs’ argument that “lack of knowledge tolled the 10 day period” for filing a Rule
59(e) motion fell afoul of Rule 6(b)(2)). Indeed, “courts have uniformly held that the
ten-day period [for filing a Rule 59(e) motion] may not be enlarged under any
circumstances.” Kelley v. St. Paul Fire & Marine Ins. Co., 856 F.2d 194, 1988 WL
89342, at *3 (6th Cir. Aug. 29, 1988) (table). The transfer of Keith’s case to this court
thus did not affect the timeliness of his Rule 59(e) motion, and the district court correctly
concluded that Keith’s motion was late.4

Yet even if Keith’s motion had not been late, the law-of-the-case doctrine barred
the district court from reconsidering whether Keith’s motion was “second or successive.”
The law-of-the-case doctrine holds that “a decision on an issue made by a court at one

3
This holding does not affect the general rule that a transfer order is not final and appealable for
the purposes of 28 U.S.C. § 1291. See Miller v. Toyota Motor Corp., 554 F.3d 653, 655 (6th Cir. 2009);
Howard v. United States, 533 F.3d 472, 474 (6th Cir. 2008) (“Our court’s practice is to treat the transfer
order as non-appealable, and to consider in the transferred case whether such a transfer was necessary or
appropriate.”).
4
One day before oral argument, in a letter filed pursuant to Federal Rule of Appellate Procedure
28(J), Keith raised the alternative argument that Rule 59(e) does not apply to his motion because the
district court had “inherent power” to reconsider its transfer order. We are extremely skeptical of this
argument, but we need not address it here. Although the case law underpinning Keith’s argument has
existed since 2008, Keith did not raise this argument before the district court. Instead, Keith identified his
motion for reconsideration as a motion under Rule 59(e) and offered only arguments regarding the proper
application of that rule. As a result, Keith waived the argument that Rule 59(e) did not apply to his motion.
See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (“[A]n argument not raised before
the district court is waived on appeal to this Court.”).
No. 09-3871 Keith v. Bobby Page 8

stage of a case should be given effect in successive steps of the same litigation.” United
States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990). This doctrine renders a determination
by the court of appeals binding upon the district court in subsequent stages of the same
litigation. United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006). It thus generally
bars the district court from reconsidering those issues that the court of appeals has
already explicitly or impliedly resolved.5 See In re Kenneth Allen Knight Trust, 303
F.3d 671, 676 (6th Cir. 2002) (“Issues decided at an early stage of the litigation, either
explicitly or by necessary inference from the disposition, constitute the law of the case.”
(internal quotation marks and citations omitted)); Jones v. Lewis, 957 F.2d 260, 262 (6th
Cir. 1992) (“[Under] the law of the case doctrine, the trial court may consider those
issues not decided expressly or impliedly by the appellate court or a previous trial court.”
(citing Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)))

In the present case, this court’s order denying Keith permission to file a second
or successive petition impliedly resolved the issue of whether Keith’s petition was
“second or successive.” Under 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or
successive application [for habeas corpus] . . . is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” The court of appeals must review the application to
determine whether “the application makes a prima facie showing that the application
satisfies the requirements” of § 2244(b). 28 U.S.C. § 2244(b)(3)(C). This court has
recognized that Ҥ 2244(b)(3) allocates subject matter jurisdiction to the court of
appeals, rather than the district court, in the first instance, over a second or successive
habeas petition.” Smith v. Anderson, 402 F.3d 718, 723 (6th Cir. 2005). As a result, the
determination of whether a petition is “second or successive” is actually a determination
as to whether this court has original subject-matter jurisdiction over the petition. See
ibid. (indicating that this court’s jurisdiction depended on whether the petitioner’s Rule
60(b) motion was actually a “second or successive habeas petition”).

5
There are some exceptions to the law-of-the-case doctrine, but they are not relevant under the
present circumstances. See Mitchell v. Rees, 261 F. App’x 825, 828 (6th Cir. 2008) (discussing the
exceptions to the law-of-the-case doctrine).
No. 09-3871 Keith v. Bobby Page 9

Although this court affords the district court the initial opportunity to assess
whether a petition is “second or successive,” we have ultimate responsibility for
determining our own jurisdiction over the petition. Cf. Howard v. United States,
533 F.3d 472, 474 (6th Cir. 2008) (“Our court’s practice in the case of second-or-
successive [petitions transferred] to this court is to treat the transfer order as non-
appealable, and to consider in the transferred case whether such a transfer was necessary
or appropriate.”). Indeed, because § 2244(b)(3) only grants this court original
jurisdiction over “second or successive” petitions, this court cannot exercise its authority
under § 2244(b)(3) unless the court has concluded that the petition is “second or
successive.” See In re Nailor, 487 F.3d 1018, 1021 (6th Cir. 2007) (indicating that the
court must determine whether the petition is “second or successive” before it can
examine whether the petition satisfies § 2244(b)); In re Marsch, 209 F. App’x 481, 483
(6th Cir. 2006) (“Because § 2244(b) applies to petitioner’s habeas request, we must now
decide whether his petition is successive and, if so, whether he can make a prima facie
showing that his claims satisfy the requirements of this provision.”). This court has
repeatedly indicated that if a petition is not “second or successive,” we must and will
transfer it back to the district court (or dismiss it, if filed originally in this court), because
this court is not authorized to consider whether a petition meets the requirements of
§ 2244(b) when the petition is not “second or successive.” See, e.g., Howard, 533 F.3d
at 474, 476 (finding that the petition was not “second or successive” and therefore
transferring the case back to the district court); In re Bowen, 436 F.3d 699, 700 (6th Cir.
2006) (same); In re Walker, 238 F.3d 426, 2000 WL 151715, at *1 (6th Cir. 2000)
(table) (same).

This court’s January 13 order constituted an exercise of the court’s authority
under § 2244(b)(3): the order denied Keith permission to file his petition because that
petition did not satisfy the requirements of § 2244(b). As such, the order necessarily
indicated that the court agreed with the district court’s determination that Keith’s
petition was “second or successive” and was therefore within this court’s original
jurisdiction. See Stoll v. Gottlieb, 305 U.S. 165, 171-72 (1938) (“Every court in
rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties
No. 09-3871 Keith v. Bobby Page 10

and the subject matter.”); see also Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 817 (1988) (“[T]he Federal Circuit, in transferring the case to the Seventh Circuit,
was the first to decide the jurisdictional issue. That the Federal Circuit did not explicate
its rationale is irrelevant, for the law of the case turns on whether a court previously
‘decide[d] upon a rule of law’–which the Federal Circuit necessarily did–not on whether,
or how well, it explained the decision.”). Under the law-of-the-case doctrine, this tacit
determination was binding upon the district court, and the district court had no authority
under Rule 59(e) to reconsider our implicit jurisdictional determination that Keith’s
petition was “second or successive.” To hold otherwise would be analogous to ruling
that a district court could, on remand, review this court’s exercise of its appellate
jurisdiction whenever this court did not explicitly assert jurisdiction on the record. A
district court plainly cannot engage in such a review. If a party disagrees with this
court’s determination that it has jurisdiction, his recourse, in principle, is to a higher
authority,6 not to the district court.7 Accordingly, the district court in this case could not
reconsider whether Keith’s petition was “second or successive,” and Keith’s request that
the district court perform such a review was improper.

III

For the foregoing reasons, we AFFIRM the order of the district court.

6
Alternatively, a party may seek reconsideration by this court, which is not barred by the law-of-
the-case doctrine from reconsidering its own jurisdiction. See In re LWD, Inc., 335 F. App’x 523, 526 (6th
Cir. 2009).
7
We recognize, of course, that 28 U.S.C. § 2244(b)(3)(E) indicates that the “grant or denial of
an authorization by a court of appeals to file a second or successive application shall not be appealable and
shall not be the subject of a petition for rehearing or for a writ of certiorari.” We note, however, that there
is reason to doubt whether § 2244(b)(3)(E)’s restrictions apply to the jurisdictional question of whether
a petition is “second or successive.” See Castro v. United States, 540 U.S. 375, 380 (2003) (“The ‘subject’
of Castro’s petition is not the Court of Appeals’ ‘denial of an authorization.’ It is the lower courts’ refusal
to recognize that this § 2255 motion is his first, not his second. This is a very different question.”);
Mancuso v. Herbert, 166 F.3d 97, 99-100 (2d Cir. 1999) (“[W]hile Section 2244(b)(3)(E) prohibits those
petitions that seek reconsideration of the merits underlying a grant or denial of a habeas petition, it does
not bar petitions that ask for reconsideration of the jurisdictional question of whether the AEDPA even
applies, i.e., while Section 2244(b)(3)(E) governs how petitions are treated once they are properly located
within the AEDPA framework, it does not restrict our authority over the threshold question of whether the
AEDPA even applies.”). Because the issue is not before us, we need not address it here.
No. 09-3871 Keith v. Bobby Page 11

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CONCURRING IN THE JUDGMENT
_________________________________________

CLAY, Circuit Judge, concurring in the judgment. Because Petitioner Kevin
Keith is not entitled to prevail based on the issues currently before this Court, I concur
in the judgment. Nonetheless, I would be remiss if I failed to comment about the
ongoing difficulties and causes for concern underlying the course of litigation in this
case. I have previously expressed my views regarding Petitioner’s entitlement to relief
in prior appeals. See Keith v. Bobby, 551 F.3d 555, 559 (6th Cir. 2009) (Clay, J.,
dissenting); Keith v. Mitchell, 466 F.3d 540, 540 (6th Cir. 2006) (Clay, J., dissenting
from denial of rehearing en banc); Keith v. Mitchell, 455 F.3d 662, 679 (6th Cir. 2006)
(Clay, J., concurring in part and dissenting in part). Consequently, I will not reiterate
my position or the evidence in the record supporting Petitioner’s claim that he is actually
innocent of the offenses for which he has been condemned to death; the evidence
suggesting Petitioner’s innocence has been described in my January 13, 2009 dissent in
this matter. Keith, 551 F.3d at 560-62. Unfortunately, it has not been possible to
persuade the panel majority or the en banc Court that the evidence suggesting
Petitioner’s innocence or the legal errors committed during the state court trial justify
granting Petitioner relief from execution. Petitioner is currently scheduled to be
executed on September 15, 2010. Even if our jurisprudence has thus far failed to
expressly recognize that an innocent person has a constitutional right not to be executed,
it is deplorable that this Court has failed and refused in this case to consider and properly
address Petitioner’s legal arguments in a manner indicating that the Court recognizes that
“death is special.”
No. 09-3871 Keith v. Bobby Page 12

_________________________________________

CONCURRING IN THE JUDGMENT
_________________________________________

JULIA SMITH GIBBONS, Circuit Judge, concurring in the judgment. I join the
result of the lead opinion in this case with confidence but decline to join its reasoning
in full. The determinative principle in this matter is that the district court was not free
to revisit the issue of whether Keith’s petition was a second or successive one. I agree
with the lead opinion that our 2009 opinion impliedly resolved this issue. I also note that
Keith had every opportunity to press this court for an explicit statement on this point.
He could have asked this court to remand to the district court because the petition was
not second or successive. He could have challenged the district court’s determination
that the petition was second or successive in his revised petition or brief to this court.
He could have moved for rehearing in this court after receiving the 2009 opinion. He
did none of those things. Instead, he sought to have the district court change its mind
on an issue that had already been resolved by this court in exercising its jurisdiction
under 28 U.S.C. § 2244(b)(3). I do not join the portion of the opinion dealing with the
timeliness of the motion under Rule 59(e). While I agree with it as a general matter, it
could be read to imply that a timely Rule 59(e) motion was indeed available to Keith.
That may or may not be the case. The order of transfer arguably divested the district
court of jurisdiction to decide such a motion. Because we need not resolve that issue to
decide the case, I would leave it for another day.