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Walter J. Himmelreich v. United States of America

December 6, 2010

WALTER J. HIMMELREICH,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On July 31, 2009, Petitioner Walter Himmelreich filed a motion to vacate under 28 U.S.C. § 2255. (Doc. No. 140.) He moved to supplement his motion to vacate on February 22, 2010. (Doc. No. 162.) On October 20, 2010, the Court denied both motions and further ordered that a certificate of appealability would not issue. (Doc. No. 167.) On November 4, 2010, Petitioner filed a motion for reconsideration under Rule 59. (Doc. No. 168.) For the reasons stated herein, the Court will deny Petitioner's motion.

I. BACKGROUND

Petitioner was arrested on November 9, 2004, after making arrangements to meet with a woman whom he believed would allow him to have sexual contact with her two minor daughters. The woman was an undercover agent, however, and Petitioner was taken into custody when he arrived at the designated meeting place. Petitioner voluntarily waived his Miranda rights and confessed to using the internet to discuss the possibility of performing sex acts on her minor children. He further admitted to engaging in sexual contact with his six-year-old daughter and taking nude photographs of her. A warrant to search his home was issued on the basis of these statements. The subsequent search yielded evidence that Petitioner had sent the photographs of his daughter to at least one other individual.

Petitioner was indicted in federal court on June 1, 2005, for knowingly producing, possessing, and distributing child pornography. (Doc. No. 1.) He entered a plea of not guilty. (Doc. No. 15.) On August 9, 2005, Attorney Frederick Ulrich was appointed to represent Petitioner. On October 21, 2005, Petitioner filed a motion to dismiss the charges for violation of the Speedy Trial Act, a motion to suppress his confession as obtained in violation of the Fifth Amendment, and a motion to suppress evidence as obtained in violation of the Fourth Amendment. (Doc. Nos. 29, 31, 33.) The Court denied all three motions on June 16, 2006. (Doc. No. 95.) Petitioner accepted a plea agreement, and pleaded guilty to Count 1 of the Second Superseding Indictment: production of child pornography in violation of 18 U.S.C. § 2251(b). (Doc. Nos. 101, 103.) The Court sentenced Petitioner to, inter alia, 240 months imprisonment on December 18, 2006. (Doc. Nos. 113, 114.)

Petitioner timely appealed on December 27, 2006, challenging his sentence and the Court's rulings on his pre-trial motions. (Doc. No. 115.) The United States Court of Appeals for the Third Circuit affirmed the judgment of conviction and the sentence on March 27, 2008. (Doc. No. 134-2.) On April 3, 2009, Petitioner filed a motion to vacate under 28 U.S.C. § 2255. (Doc. No. 135.) The Court issued a standard Miller-Mason notice of election, to which Petitioner responded that he wished to withdraw his initial filing and file one all-inclusive petition. (Doc. No. 138.) On July 31, 2009, Petitioner filed a new motion to vacate under 28 U.S.C. § 2255. (Doc. No. 140.) He moved to supplement his motion to vacate on February 22, 2010. (Doc. No. 162.) On October 20, 2010, the Court denied both motions and further ordered that a certificate of appealability would not issue. (Doc. No. 167.)

II. STANDARD OF REVIEW

A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly-discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has "patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp. 2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995) (citation omitted).

III. DISCUSSION

Petitioner has filed a forty-four paragraph motion for reconsideration in which he raises a litany of claims. (Doc. No. 168.) Construing the pro se motion liberally, the Court finds:

1. Paragraphs 1 through 5 appear to raise a claim of newly discovered evidence related to statements made in a suppression hearing;

2. Paragraphs 6 through 8 appear to raise a ...


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