Opinion
CRIMINAL ACTION No. 99-252, SECTION "K"(1)
March 23, 2004
MINUTE ENTRY
Before the Court is a Petition to Reconsider Pursuant to Fed.R.Civ.P. 59(e) (Rec. Doc. No. 601) and a Petition to Submit Supplemental Authority (Rec. Doc. No. 600) filed by petitioner Isaac Knapper. Having reviewed the pleadings, memoranda, and relevant law, the Court DENIES Knapper's Petition to Reconsider and GRANTS his Petition to Submit Supplemental Authority.
I. BACKGROUND
On June 14, 2000, petitioner pled guilty to drug conspiracy charges in violation of the Federal Controlled Substances Act, 21 U.S.C. § 841(a)(1) and 846 and money laundering charges under 18 U.S.C. § 1956(a)(1)(B)(1). At re-arraignment petitioner executed and attested to both a factual basis for his crimes and a plea agreement. In August of 2000, a Pre-Sentence Report ("PSI") was issued indicating that petitioner was responsible for between 50kg to 150kg of cocaine hydrochloride resulting in a base offense level of 36 under the Federal Sentencing Guidelines. The PSI further recommended the Court impose a two — level increase against the petitioner for firearm possession and a four — level increase for the petitioner's leadership role in the offense, with a three — level reduction for petitioner's acceptance of responsibility. This resulted in an offense level of 39 under the guidelines such that petitioner's ultimate sentencing range was from 262 to 327 months of imprisonment. Petitioner filed timely objections to the increase of the offense level for the firearms and to the proposed leadership adjustment. On November 27, 2000, petitioner moved to withdraw his guilty plea, a motion which this Court denied on January' 8, 2001. At sentencing on April 18, 2001 the Court sustained the petitioner's objection to the sentencing enhancement relating to the firearm possession and denied the petitioner's objection to the proposed leadership adjustment. As a result of the Court sustaining Knapper's objection, his base offense level was reduced to 37. With a criminal history category of I, the applicable guideline range was 210-262 months. The Court then sentenced the petitioner to 240 months on both counts (the drug charges and money laundering) to be served concurrently.
Petitioner then appealed his conviction to the Fifth Circuit Court of Appeals on the grounds that the Court erred both in denying his motion to withdraw his guilty plea and applying a leadership role enhancement. The Fifth Circuit issued a judgment affirming this Court on January 3, 2002. Subsequently, petitioner timely filed a § 2255 Motion to Vacate his sentence on March 6, 2003, arguing that (1) his plea was involuntary; (2) his indictment was faulty and not timely filed under 18 U.S.C. § 3162; and (3) he had ineffective assistance of counsel.
The Court denied petitioner's § 2255 Motion on August 22, 2003. Specifically, the Court determined that petitioner's claims regarding his involuntary guilty plea had previously been addressed by the Court. Rec. Doc. No. 599 at 4-5. Additionally, petitioner waived his faulty indictment claims since he failed to raise them on direct appeal. Rec. Doc. No. 599 at 6. Finally, the Court denied petitioner's ineffective assistance of counsel claims because he failed to establish that but for his counsel's errors he would not have pled guilty and would have insisted on going to trial. Rec. Doc. No. 599 at 7-9. The Court also denied petitioner's ineffective assistance of counsel claims regarding Apprendi and "safety valves" as to their merit. Id.
The Court ruled on this issue when it denied petitioner's motion to withdraw his guilty plea.
The Court specifically stated: "Assuming . . . that counsel was ineffective . . ., [petitioner] does not contend that `but for' counsel's mistakes, he would not have pled guilty. [Petitioner] only suggests that the `prejudice' requirement would be satisfied because counsel's mistakes led to a longer sentence." Rec. Doc. No. 599 at 7.
On September 5, 2003, petitioner filed a Petition to Submit Supplemental Authority (Rec. Doc. No. 600), attaching the Supreme Court decision Wiggins v. Smith, which petitioner alleges is "on all fours with [his] claims." Petitioner also filed a Petition to Reconsider Pursuant to Rule 59(e) (Rec. Doc. No. 601).
II. LEGAL STANDARD ANALYSIS
Motion to Reconsider
"Although the `Motion to Reconsider' is found nowhere in the Federal Rules of Civil Procedure, it has become one of the more popular indoor courthouse sports at the district court level. Such pleadings are becoming an intricate part of motion practice by which the losing party to a motion obtains a second bite at the apple — a chance to reargue and sometimes submit additional argument and authority in support of his lost motion." State of Lousiana v. Sprint Communications Co., 899 F. Supp. 282, 284 (M.D.La.1995). The Fifth Circuit typically interprets motions to reconsider dispositive pretrial orders as analogous to Rule 60(b) motions for relief from judgment or Rule 59(e) motions to alter or amend the judgment, depending on whether the motion is filed within ten days of the order's issuance. See e.g., Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). A motion filed within ten days of the order's issuance is construed as a Rule 59(e) motion. Id. A motion filed beyond this ten day window is considered a Rule 60 motion. Id. Because the instant motion was within 10 days from the date the Court issued the order, the Court should construe the motion pursuant to Rule 59(e).
Reconsideration of an entered judgment is an extraordinary remedy which should only be used sparingly. See 11 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2810.1 (2d ed. 1995). A court enjoys considerable discretion in reviewing a motion to reconsider. Id. The motion "may not be used to re-litigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Id. Motions to reconsider "based on recycled arguments only [serve] to waste the resources of the court," and are not the proper vehicle to "[rehash] old arguments or [advance] legal theories that could have been presented earlier." Krim v. PCORDER.COM, Inc., 121 F.R.D. 329, 331 (W.D.Tex.2002). These motions should serve the narrow purpose of "permit[ting] a party to correct manifest errors of law, or fact, or to present newly discovered evidence." Id. Habeas Review
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move that court to vacate his sentence. The court need not, however, conduct a hearing and re-litigate issues that were raised by the petitioner in his direct appeal. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1968); Fuentes v. United States, 455 F.2d 910 (5th Cir. 1972). In United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) the Fifth Circuit explained that a petition for relief under 28 U.S.C. § 2255 "may not do service for an appeal." Shaid, 937 F.2d at 231. After conviction and exhaustion or waiver of any right to appeal "we are entitled to presume that [the defendant] stands fairly and finally convicted" such that a defendant may challenge his conviction after it is presumed final only on issues of constitutional and jurisdictional magnitude. Id. at 232; see also Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A defendant may not raise an issue for the first time on collateral review without first showing both "cause" for his procedural default and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232 (quoting United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).
A prisoner in custody under sentence of a court may move the court which imposed the sentence to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. Additionally,
"unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.
If the error is not of constitutional or jurisdictional magnitude, the defendant must show that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). A defendant must meet this cause and actual prejudice test even when he alleges a fundamental constitutional error. See Murray v. Carrier, 477 U.S. 478, 493 (1986). The cause and prejudice standard applies to inadvertent attorney errors as well as deliberate tactical decisions. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).
In an "extraordinary case," however, "in which a constitutional violation has probably resulted in the conviction of one who is actually innocent," the Supreme Court has recognized a narrow exception to the cause and prejudice test. This exception is limited to "extraordinary" cases involving "manifest miscarriage [s] of justice" that would result in the continued incarceration of one actually innocent of the offense. See e.g., Smith v. Murray, 477 U.S. at 537; Murray v. Carrier, 477 U.S. at 496.
Knapper's Argument's
Petitioner Knapper states that his failure to contend that "but for" counsel's errors he would not have pled guilty in his Response to the Government's Motion to Dismiss was due to a typing error made by a fellow prison inmate who actually typed petitioner's motion. Knapper offers copies of his original, handwritten motion (handwritten by someone else) and the final typed version. Additionally, petitioner contends that his original petition for habeas relief contained an allegation that "but for" counsel's errors he would not have gone to trial.
Although petitioner states that his original habeas petition contained an allegation that but for his counsel's errors he would not have pled guilty and would have gone to trial, no such language is present in his original petition. See Rec. Doc. No. 592 2-5. All of petitioner's allegations regarding his counsel's performance relate to petitioner's sentence, and not to his actual plea. Id. There is no contention by petitioner that he would not have pled guilty but for counsel's errors, and therefore his claim that he included such an allegation in his original petition is without merit.
Likewise, petitioner asserts no new grounds for granting his ineffective assistance of counsel claims. In its Order and Reasons denying petitioner § 2255 relief, this Court established that petitioner's arguments for ineffective assistance of counsel regarding Apprendi and "safety valves" were "not relevant to [his] case." Rec. Doc. No. 598 at 8. Even if petitioner's typographical error in his Response to the Government's Motion to Dismiss would lead the Court to reconsider his habeas petition, the Court has already determined that petitioner's grounds for relief were irrelevant to his case and therefore without merit. See Rec. Doc. No. 598 at 7-9. A motion to reconsider cannot be used to re-argue matters already decided by the Court. Petitioner's grounds for relief regarding Apprendi and "safety valves" are as irrelevant now as they were in his original petition, and therefore a motion to reconsider is inappropriate.
Additionally, the case provided by Knapper as a supplement, Wiggins v. Smith, 123 S.Ct. 2527 (2003), is clearly inapposite to the instant matter. However, in the interest of justice, the Court shall allow it to supplement the record. Petitioner's claims relate to his counsel's failure to allege that the indictment was faulty and inform petitioner of sentencing upgrades he was eligible for. See Rec. Doc. No. 592 at 2. Wiggins, however, relates to counsel's failure to fully investigate the defendant's life history for mitigation in sentencing. See 123 S.Ct. 2527. The only similarity between petitioner's claims and Wiggins is that they relate to counsel's ineffectiveness during the sentencing procedure; there is no further connection. Wiggins does not support a reconsideration of petitioner's ineffective assistance of counsel claims and does not call for a vacation of petitioner's sentence. Accordingly, for reasons stated above,
IT IS ORDERED that Knapper's Petition to Reconsider Pursuant to Fed.R.Civ.P. 59(e) (Rec. Doc. No. 601) is hereby DENIED.
IT IS FURTHER ORDERED that the Petition to Submit Supplemental Authority (Rec. Doc. No. 600) filed by petitioner Isaac Knapper is hereby GRANTED.