United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
before the Court is Petitioner's motion for
reconsideration of this Court's Memorandum and Order,
(Docs. 122-23), issued on January 5, 2016. (Doc. 124).
Petitioner requests that this Court reconsider its denial of
Petitioner's request to bar the Commonwealth of
Pennsylvania from future prosecution against Petitioner of
any charges relating to the 1989 fire that resulted in the
death of his daughter. (Id.).
reasons set forth below, Petitioner's motion for
reconsideration will be denied.
Standard of Review
motion for reconsideration is a device of limited utility. It
may be used only to seek remediation for manifest errors of
law or fact or to present newly discovered evidence which, if
discovered previously, might have affected the court's
decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906
(3d Cir. 1985), cert-denied. 476 U.S. 1171 (1986);
Massachusetts Mutual Life Insurance Co. v. Maitland,
Civil No. 87-0827 (M.D. Pa. March 1, 1989) (Rambo, J.).
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 granted the motion; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Max's Seafood Cafe v. Ouineros, 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 "...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." See 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 Casualty Co. v. Diversified
Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).
motion for reconsideration, Petitioner requests that this
Court reverse its decision denying Petitioner's request
to bar re-prosecution of Petitioner on charges arising from
the death of his daughter in 1989, for the following
(1) in requesting an order barring retrial, [P]etitioner did
not contend that such relief was mandated by the words or
intendment of the August 8, 2014 order "in itself;"
(2) [P]etitioner never argued that it was the
Commonwealth's failure to commence a retrial within 120
days of August 8, 2014, that entitled him to an order barring
retrial; (3) this Court's [M]emorandum never addresses
the arguments actually made by  [P]etitioner in support of
his request for relief; and (4) the Court's [M]emoramdum
does not mention the controlling Third Circuit authority on
this issue, which is not limited to situations (such as
double jeopardy) where the constitutional violation at the
original trial is itself the basis for barring any retrial.
(Doc. 125, p. 3).
it is noted that Petitioner has never asserted that
re-prosecution should be barred because the state did not
retry him within the one hundred twenty (120) day period
permitted in the conditional grant of writ or that
re-prosecution should be barred based on this Court's
August 8, 2014 Order. Petitioner is also not arguing that
there was an intervening change in controlling law or that
there is an availability of new evidence that was not
available when this Court granted his habeas petition.
Instead, he is arguing that there was a clear error of law
that needs to be corrected to prevent a manifest injustice.
support of this assertion, Petitioner relies on several
decisions of the United States Court of Appeals for the Third
Circuit. In each of these cases, the issue involved
procedural delays on the part of the state court, not a time
lapse between a conviction date and the date of a grant of a
writ of habeas corpus petition. See Codisposti v.
Howard, 589 F.2d 135 (3d Cir. 1978) (The Third Circuit
held that because the petitioner's new trial motion filed
in state court on the day of his sentencing twelve (12) years
earlier had never been addressed by the state court,
"[t]he trial court's delay in responding to his
post-trial motions has stymied his appeal and barred judicial
review" and warranted an evidentiary hearing at the
trial court level to determine "whether there were
errors committed at Codispoti's trial which were of a
constitutional dimension. If there were constitutional
violations, the court should further determine whether a new
trial should be held or whether due to the passage of time
[from the state court appeal] the charges must be dismissed.
Even if the court concludes that there were no constitutional
violations at the original state trial, the court is free to
consider whether the sheer length of the delay in deciding
the new trial motion is a violation of Codispoti's
constitutional rights."); Heiser v. Ryan, 951
F.2d 559, 564 (3d Cir. 1991) (The Third Circuit reversed the
district court's denial of the petition for writ of
habeas corpus and remanded back to the court for an
evidentiary hearing on the allegations set forth in the
petition that the petitioner's procedural due process
rights were violated by the state court's failure to rule
on both his motion to withdraw his guilty plea and his PCHA
petition, and held that "Normally, the remedy for a due
process violation is not discharge . . .  discharge is
appropriate when 'attempting an alternative remedy would
not vitiate the prejudice of the fundamental unfairness or
would itself violate a petitioner's constitutional
rights.'"(quoting Burkett v. Cunningham,
826 F.2d 1208, 1221 (3d Cir. 1987), overruled by
Betterman v. Montana, 136 S.Ct. 1609
(2016)). Based on these cases, Petitioner argues
. . . [P]etitioner relies on and invokes this Court's
discretion at this time and under all the present,
post-remand circumstances, to evaluate whether "the
prejudice of the fundamental unfairness"
(Heiser, quoting Burkett), found by this Court in
[Petitioner]'s case (and affirmed by the Third Circuit)
is such, "due to the passage of time" (Codispoti),
that it could not be "vitiated" (Heiser)
by a new trial.
In light of the history of this case (CodispotO, it
is only fair that [Petitioner] be judicially declared forever
free from any fear of re-prosecution on the same charges. In
exercising its remedial discretion under controlling
precedent, [P]etitioner asks that this Court take into
consideration  [Petitioner's age (nearing 81), the
passage of time since the fatal fire (26 ½ years), the
paucity, loss or destruction of most of the original physical
and laboratory evidence, without which [Petitioner] almost
certainly will never be able to prove (or even scientifically
establish a reasonable doubt) whether the fire started by
accident, the belated revelation through discovery and
hearing before Magistrate Judge Carlson that misleading if
not false testimony was presented against him at trial by the
now-deceased state police lab chemist, Thomas Pacewicz, and
then emphasized in argument to the jury by the District
Attorney, the deaths and faded memories of other witnesses,
[Petitioner]'s 24 years of unjust incarceration (and all
the personal losses associated with that incarceration), the
effect of that incarcerations and passage of time on
[Petitioner]'s ability to ...