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Moore v. Diguglielmo

May 20, 2010

JOHN MOORE, PETITIONER,
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS.



MEMORANDUM

Petitioner John Moore was convicted in state court on one count of second-degree murder, one count of criminal conspiracy, one count of possessing an instrument of crime, two counts of aggravated assault, and three counts of robbery. Moore subsequently filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court, which included both counseled and uncounseled claims. I referred the petition to United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("R&R"). Judge Rapoport's R&R recommended dismissing the petition, and on March 27, 2009, this court approved and adopted that recommendation. Petitioner has now filed (1) a motion for reconsideration of this court's March 27, 2009 Order,*fn1 (2) a motion to amend the motion for reconsideration, and (3) numerous other motions related to his § 2254 petition.*fn2

I.

"The purpose of a motion for reconsideration is 'to correct manifest errors of law or fact or to present newly discovered evidence.' A proper Rule 59(e) motion therefore must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (quoting Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). Where errors of law or fact are alleged, factual or legal issues may be reconsidered if they were "overlooked by the court in its decision," but "[a] motion for reconsideration is not properly grounded on a request that a court reconsider repetitive arguments that have [been] fully examined by the court." Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 398-99 (E.D. Pa. 2002) (internal quotation marks omitted).

A.

Petitioner's motion does not claim either that (1) the relevant law has changed, or (2) newly-discovered evidence is available. Instead, the motion chiefly relies on previously-submitted affidavits from four individuals -- James Lamb, Lapricia Jessup, Brian Scott, and Herman Brooks. See Mot. at 2-4. All four affidavits in some way assert that Lamb, a cooperating co-defendant, fabricated his trial testimony against Moore. Specifically, the Lamb and Brooks affidavits both state that Lamb told Brooks that a man named "Newton," not Moore, committed the crimes with Lamb. Scott's affidavit, meanwhile, states that Lamb had earlier told him that he was going to "lie on" someone to get a better deal -- and that Scott recently discovered that Lamb was referring to Moore. Finally, Jessup's affidavit states that Jessup would have testified that Lamb told her that he did not remember who assisted him in committing his crimes .

None of the affidavits demonstrates that the R&R erred in its analysis of any of the claims in Moore's § 2254 petition, and this court will therefore deny petitioner's motion insofar as it rests on the affidavits. Because neither the R&R or this court's order adopting the R&R expressly considers the effect of the affidavits, however, I briefly consider their relationship to the claims in Moore's petition.

Jessup's affidavit is certainly both (1) relevant to Moore's argument that his trial counsel "was ineffective for failing to investigate Moore's claims that Lapricia Jessup could have provide[d] exculpatory evidence," R&R at 9-10, and (2) potentially exculpatory on its face. Nevertheless, the possibility that Jessup would have testified to this fact was before Judge Rapoport, who correctly concluded that (1) Jessup also would have provided inculpatory evidence against Moore, meaning that Moore could not have been prejudiced by counsel's failure to investigate Jessup as a witness, and (2) the performance of petitioner's trial counsel was not deficient given that the state Post Conviction Relief Act ("PCRA") court found that Jessup later proved unwilling to "sign an affidavit or testify." R&R at 17. This court also adopted Judge Rapoport's recommendation that petitioner procedurally defaulted this issue by failing to fairly present it to the state courts. None of these conclusions is altered by Jessup's affidavit -- or, for that matter, any of the other affidavits on which petitioner relies.

Similarly, while the affidavits may be factually relevant to Moore's claim that his trial counsel "was ineffective for failing to object to Lamb's false testimony and/or argue prosecutorial misconduct," R&R at 20, the PCRA court denied this claim on the ground that Lamb's later assertion that he lied on the stand was incredible. I adopted Judge Rapoport's conclusions that Moore had not presented "clear and convincing evidence" to rebut this "credibility determination," and that "[a]ny objection to Lamb's trial testimony would have proved meritless." Id. at 21. The affidavits are collectively insufficient to alter these conclusions. The affidavits by Scott, Brooks, and Lamb -- which variously state that it was someone named "Newton" who really assisted Lamb with the crimes for which Moore was convicted and that Lamb was "l[ying] on" Moore to get a better deal, cannot explain away the fact that "'Lamb could have recieved the same deal for his testimony against'" whoever helped him commit the crimes at issue. Id. at 20 (quoting Resp. Ex. K, at 4-5). The Jessup affidavit is also of no help to Moore on this score, because it contradicts the Brooks and Lamb affidavits in stating that Lamb told Jessup he did not remember who helped him commit the crimes. For these reasons, the affidavits do not provide clear and convincing evidence to overcome the PCRA court's credibility determination.

The petition also argues that the PCRA court should have held an evidentiary hearing and should not have dismissed his actual innocence claim. These arguments, however, were dismissed "[b]ecause allegations of due process violations occurring during state collateral review proceedings are not cognizable on habeas review," R&R 18, and the affidavits cannot change that rule of law.

The affidavits are simply not relevant to the remaining claims in Moore's § 2254 petition, which involve (1) the propriety of counsel's stipulating to a Coroner's report, (2) counsel's advice to Moore that he not testify on his own behalf, (3) counsel's advice that Moore waive his right to a jury trial, and (4) the trial judge's purported application of a standard lower than guilt beyond a reasonable doubt.*fn3

B.

The motion for reconsideration also asserts that petitioner "has complied with all of the stringent procedures" necessary to bring a § 2254 petition, id. at 7, even though this court adopted Judge Rapoport's conclusion that several of petitioner's claims were not fairly presented to the state courts and were therefore procedurally defaulted. In considering this argument, this court has discovered an error of fact in Judge Rapoport's R&R. The R&R states that Moore's arguments to the PCRA court on his first petition "never raised the issue of trial counsel ineffectiveness regarding the failure to investigate or call Jessup." R&R at 14. This is incorrect. Pages 3-5 of Moore's submission to the PCRA court include arguments captioned "[t]rial counsel was ineffective for failure to present a defense" and "[t]rial counsel was ineffective for failure to investigate, interview and call a witness to testify," and these arguments deal expressly with the failure to call Jessup. Gov't Resp., Ex. E, at 3-4. Petitioner thus fairly presented these claims to the PCRA court as claims concerning trial counsel.

This error does not, however, render incorrect Judge Rapoport's conclusion that Moore did not fairly present this issue to the state courts. "In order for a claim to be exhausted, it must be 'fairly presented' to the state courts 'by invoking one complete round of the State's established appellate review process.'" Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). Petitioner did not do so; in his brief to the Pennsylvania Superior Court, his claim is unambiguously one that PCRA counsel, and not trial counsel, was ineffective with regards to the handling of Jessup. See Gov't Resp., Ex. H. Thus, this court will ...


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