The opinion of the court was delivered by: Padova, J.
Before the Court is Defendant Marcel Harper's pro se Motion to Alter or Amend Judgment, in which Harper seeks reconsideration of our December 17, 2010 Order denying his Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is denied.
On March 12, 2007, Harper was convicted by a jury of conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (Count I); armed bank robbery, and aiding and abetting armed bank robbery, of the Artisans Bank in Wilmington, Delaware on April 14, 2004, in violation of 18 U.S.C. §§ 2113(d) and 2 (Count II); use and carrying, and aiding and abetting the use and carrying, of a firearm in connection with a crime of violence on April 14, 2004, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count III); armed bank robbery, and aiding and abetting armed bank robbery, of the Citizens Bank in Brookhaven, Pennsylvania on June 15, 2004, in violation of 18 U.S.C. §§ 2113(d) and 2 (Count IV); and use and carrying, and aiding and abetting the use and carrying, of a firearm in connection with a crime of violence on June 15, 2004, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (CountV).
Harper was sentenced on November 14, 2007 to a term of imprisonment of 40 months on each of Counts I, II and IV, to be served concurrently; 84 months (seven years) of imprisonment on Count III, to be served consecutively; and 300 months (25 years) of imprisonment on Count V, to be served consecutively. The seven and twenty-five year terms on Counts III and V were mandatory minimum terms of imprisonment provided by 18 U.S.C. § 924(c). The mandatory minimum term of imprisonment for Count III is found in § 924(c)(1)(A)(ii), which provides that the punishment for the use or carrying of a firearm in connection with a crime of violence or a drug trafficking crime is a term of imprisonment of not less than seven years, "if the firearm is brandished." 18 U.S.C. § 924(c)(1)(A)(ii). The mandatory minimum term of imprisonment for Count V is found in § 924(c)(1)(C), which provides that, "[i]n the case of a second or subsequent conviction under this subsection, the person shall -- (i) be sentenced to a term of imprisonment of not less than 25 years." 18 U.S.C. § 924(c)(1)(C). Harper appealed his judgment of conviction and sentence to the United States Court of Appeals for the Third Circuit on November 15, 2007. The Third Circuit rejected all of Harper's arguments and affirmed his judgment of conviction and sentence on December 3, 2008. See United States v. Harper, 314 F. App'x 478 (3d Cir. 2008).
On April 22, 2010, Harper filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, raising four grounds for relief: (1) his 7-year sentence on Count III and 25-year sentence on Count V are not authorized by 18 U.S.C. § 924; (2) his 25-year sentence on Count V violates the Fifth Amendment; (3) Counts IV and V should be dismissed because FBI Special Agent Roselli's perjured grand jury testimony violated his Fifth Amendment rights; and (4) Special Agent Roselli's conduct at trial violated his Fifth and Sixth Amendment rights. About two weeks later, on May 6, 2010, Harper filed a motion asking that we hold his § 2255 Motion in abeyance until after the Supreme Court decided two cases, United States v. O'Brien, No. 08-1569, cert. granted, 130 S. Ct. 49 (Sept. 30, 2009), and Abbott v. United States, No. 09-479, cert. granted, 130 S. Ct. 1284 (Jan. 25, 2010). We granted that motion on May 11, 2010, ordering that the § 2255 Motion be held in abeyance until the Supreme Court either decided or vacated its order granting certiorari in both cases. (May 11, 2010 Order.) Our May 11, 2010 Order also stated that Harper could "file a supplemental memorandum of law addressing the Supreme Court's decisions in the above referenced cases within thirty (30) days of the latter decision." (Id.) The Supreme Court decided O'Brien on May 24, 2010, and Abbott on November 15, 2010. See United States v. O'Brien, 130 S. Ct. 2169 (2010), and Abbott v. United States, 131 S. Ct. 18 (2010). Harper filed a supplemental memorandum addressing O'Brien on August 18, 2010. We waited for thirty days after the Supreme Court issued its decision in Abbott before deciding Harper's § 2255 Motion, but Harper did not file a supplemental memorandum addressing that decision. On December 17, 2010, we denied the § 2255 Motion, concluding, inter alia, Harper had procedurally defaulted his first, second and fourth grounds for relief.*fn1
Harper asks us to reconsider our decision denying his § 2255 Motion pursuant to Federal Rule of Civil Procedure 59(e). "The purpose of a motion for reconsideration is 'to correct manifest errors of law or fact or to present newly discovered evidence.'" Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (quoting Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). "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." Id. (citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Harper asks, in the instant Motion to Alter or Amend Judgment, that we revisit our decision denying the § 2255 Motion on the ground that we overlooked controlling decisions and material factual matters, and made clear errors of law.
Harper contends that we should reconsider the December 17, 2010 Memorandum and Order denying his § 2255 Motion for four reasons: (1) we found two of his grounds for relief were procedurally defaulted even though he based these claims on Abbott v. United States, No. 09-479, and United States v. O'Brien, No. 08-1569, and those cases had not been decided when he filed his direct appeal; (2) we mistakenly found that two of his claims were procedurally defaulted even though he had made a claim of actual innocence; (3) we improperly found that three of his claims were procedurally defaulted even though he had made a claim of ineffective assistance of counsel; and (4) we ignored evidence and failed to hold an evidentiary hearing with respect to his claim that Special Agent Roselli made improper comments and hand gestures during his trial.
A. The Abbott and O'Brien Decisions
Harper's § 2255 Motion asserted two challenges to the legality of his sentences on Counts III and V (the § 924(c) counts), which he contends should be governed by Abbott and O'Brien. First, Harper claimed that his sentences on Counts III and V were not authorized by the "except" clause of 18 U.S.C. § 924(c)(1)(A). Second, he argued that his sentence for Count V violated his Fifth Amendment right to indictment by a grand jury because Count V of Indictment No. 05-170 did not specifically charge him with having a previous conviction for violation of 18 U.S.C. §924(c). Ultimately, however, we did not address either Abbott or O'Brien in our December 17, 2010 Memorandum denying Harper's § 2255 Motion because we found that both these arguments had been procedurally defaulted because Harper did not raise them on direct appeal.*fn2 Harper now argues that we erred by determining that he had procedurally defaulted his claims with respect to his sentences for Counts III and V, because he could not have raised Abbott and O'Brien on direct review.*fn3
Where a defendant has failed to raise a claim on direct appeal, and has thus procedurally defaulted that claim, he may nevertheless raise the claim in a § 2255 motion if "he can prove either that he is actually innocent of the crime for which he was convicted, or that there is a valid cause for the default, as well as prejudice resulting from the default." Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009) (citing Bousley v. United States, 523 U.S. 614, 622 ...