Opinion
Cr. File No. 97-276(4) (MJD/JGL)
April 28, 2003
Petitioner on his own behalf.
JEFFREY S. PAULSEN, Assistant United States Attorney, for and on behalf of Respondent.
ORDER
This matter is before the Court upon Petitioner's motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e).
Standard
A motion under Rule 59(e) of the Federal Rules of Civil Procedure serves the limited purpose of correcting manifest errors of law or fact or to present newly discovered evidence. Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of The Black Hills, 141 F.3d 12841286 (8th Cir. 1998). ASuch motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment. Id. (citations omitted). As this motion is not supported by newly discovered evidence, and Petitioner has failed to show that this Court's prior order is based on a manifest error law, Petitioner's motion must be denied.
Analysis
On December 3, 2002, this Court denied Petitioner's habeas petition filed pursuant to 28 U.S.C. § 2255. By this motion, Petitioner alleges that this Court erred in finding his supplemental petition was time-barred. Specifically, Petitioner asserts that his claims of ineffective assistance of counsel based on counsel's failure to call Willie Hart as a witness at trial, and counsel's failure to investigate and offer evidence of another perpetrator of the Coppage murders were raised in his original petition. In support, he cites to the following language in his memorandum filed in support of his petition:
Counsel failed to thoroughly investigate the murder of the (5) five Coppage children to find defense witnesses that held exculpatory evidence on suspects that had `motive and opportunity' to commit the crime movant was accused of.
This language appeared on page three of his original memorandum. In the following pages however, there is no mention of Willie Hart, or any discussion of another perpetrator concerning the Coppage murders. The original petition similarly sheds no light on this claim.
In the original Petition, Petitioner asserted eight very specific claims: ineffective assistance of counsel for failure to challenge the wiretaps; failure of counsel to object to admittance of certain statements in violation of Fed.R.Ev. 801(d)(2)(E); failure of counsel to call Terrance White as a witness; failure of counsel to properly advise Petitioner on his right to testify; lack of subject matter jurisdiction to prosecute murder counts; failure of counsel to obtain voice examplars; failure of counsel to object to jury instruction relating to reasonable doubt; and the indictment was fundamentally defective concerning the 1959 count. The memorandum filed in support of this petition included argument concerning certain of these claims. In his amendment of memorandum filed prior to the government's response, Petitioner again addresses only those claims specifically listed in the original petition.
The rationale behind Rule 15(c) is to provide sufficient notice to the opposing party of the asserted claims. United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999). By failing to explain the allegation that counsel failed to thoroughly investigate the Coppage murders with background facts or discussion, the government had no notice of the underlying basis for this claim, and could thus not respond to such claim. Accordingly, the Court did not err in refusing to relate this claim back to the original petition.
Alternatively, Petitioner argues that the Court erred in not addressing those claims included in his amended petition because such claims support his claim of actual innocence. In support, Petitioner cites to the Supreme Court decision in Schlup v. Delo, 513 U.S. 298 (1995).
In Schlup, the Supreme Court held that a habeas petitioner, claiming actual innocence and asserting a claim of ineffective assistance of counsel, is entitled to habeas review if the petitioner can 1) Asupport his allegations of constitutional error with new reliable evidence B whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence B that was not presented at trial. Id., 513 U.S. at 324; and 2) show that it is Amore likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. at 327.
Assuming without deciding that Schlup applies in this case, the Court nonetheless finds that its application affords the Petitioner no relief. Either the Anew evidence presented in support of his claim is not new, or the evidence is contradictory.
Petitioner supports his claim of actual innocence by asserting that counsel was ineffective for failing to call Willie Hart as a witness at trial. Willie Hart was charged as a juvenile with the murders of the Coppage children. At the time of Petitioner's trial, Hart's case was pending. Subsequent to Petitioner's conviction of these murders, however, Hart entered a plea of guilty to the murder charges pursuant to a plea agreement. Now, in support of Petitioner's petition for habeas relief, Petitioner has submitted an affidavit from Hart in which he states that Petitioner was not with him Aat the time of the fires, which resulted in murders, and that had Petitioner's trial counsel contacted him, he Awould have made him aware of the facts and circumstances of the night of February 28, 1994" and would have testified on behalf of Petitioner at trial. Hart Affidavit, ¶ 2-4.
Hart's affidavit does not constitute new evidence. It is unlikely that Hart would have testified at trial as his case was still pending at the time of trial. In fact, the government asserts that in response to the subpoena of Hart to testify at trial, Hart's counsel informed the government that Hart would invoke his Fifth Amendment right to remain silent. The Eighth Circuit has held that Awhen a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not Anewly discovered. United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993) (quoting United States v. Offutt, 736 F.2d 1199, 1202 (8th Cir. 1984)). Because the Hart affidavit does not constitute new reliable evidence, Petitioner has failed to meet the first Schlup factor.
Second, the Court finds that even if Hart testified at trial that Petitioner was not with him at the time of the fire of the Coppage home, the government would have been able to impeach such testimony through statements he made during a proffer made on June 29 and 30, 1998. Attachment 1 to Government's Opposition to Petitioner's Motion to Alter or Amend Judgment. During the proffer, Hart specifically stated that both he and Petitioner participated in the fire bombing of the Coppage home. Id. Under these circumstances, Petitioner cannot show that had Hart testified at trial, it is more likely than not that the jury would not have convicted him of the murders.
Finally, Petitioner asserts that his counsel was ineffective for failing to investigate or call witnesses who would testify as to statements that persons, other than those who were indicted for the murders, may have started the deadly fire of the Coppage home. Again, Petitioner has failed to provide new evidence to support his claims. These statements were available at the time of trial. In addition, Petitioner has failed to show that had counsel investigated these statements, evidence would have been uncovered to show that these other persons actually started the Coppage home on fire. The statements alone do not conclusively show that other persons started the fire, and Petitioner has made no additional showings, through affidavit or other evidence, which supports a finding that other persons did, in fact, start the fire. He has thus not demonstrated that it is more likely than not that had the jury seen the statements at issue, Petitioner would not have been convicted of the Coppage murders.
IT IS HEREBY ORDERED that Petitioner's motion to alter or amend the judgment is DENIED.