Opinion
Civil Action No. 04-84.
November 24, 2004
MEMORANDUM
Before the court is the motion of petitioner Michael Paul Weber to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Specifically, petitioner seeks reconsideration of our denial of his petition for habeas corpus relief under 28 U.S.C. § 2254, based on the Report and Recommendation of Magistrate Judge Arnold C. Rapoport.
The history of this action is chronicled in detail in the Report and Recommendation and will not be repeated here. Suffice it to say that petitioner was convicted in 1995 by a jury in the Court of Common Pleas of Northampton County of rape, statutory rape, simple assault, and involuntary deviate sexual intercourse. He had sexually assaulted and physically abused his daughter for ten years, beginning when she was eight years old. He was sentenced to 20 to 64 years in prison. While the Superior Court overturned his conviction, the Pennsylvania Supreme Court reversed. It reinstated petitioner's conviction and sentence.Commonwealth v. Weber, 675 A.2d 295 (Pa.Super.Ct. 1996), rev'd, 701 A.2d 531 (Pa. 1997). His efforts to obtain post-conviction relief in the state court were unsuccessful. He then turned to the federal court with his § 2254 motion.
In his pending motion to alter or amend, he contends that the Magistrate Judge erred in not reviewing the merits of the petition. We disagree. We find no error in his analysis or recommendation to this court.
Next, petitioner faults the Magistrate Judge for failing to "reweigh" the relevant evidence concerning his claim that his trial counsel was ineffective. Petitioner relies on the following language in Wiggins v. Smith, 539 U.S. 510, 534 (2003):
In order for counsel's inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel's failures prejudiced his defense. Strickland, 466 U.S., at 692, 104 S.Ct. 2052. In Strickland, we made clear that, to establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694, 104 S.Ct. 2052. In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence. . . .
(emphasis added).
To the extent that the Magistrate Judge was required to and failed to reweigh the relevant evidence, we have done so. We find that there is not a reasonable probability that but for any unprofessional errors by counsel, the result of the trial would have been different.
Petitioner contends that the state court, in postconviction proceedings, made clearly erroneous findings of fact because it did not take into consideration the affidavit of attorney Mark Medvesky, who was one of petitioner's lawyers at his trial. According to the affidavit, the trial judge said the words "perjured testimony" in connection with petitioner's trial testimony in a voice Mr. Medvesky believed was loud enough for the jury to hear. Petitioner contends his trial counsel were ineffective for not making an objection and seeking a mistrial.
We have reviewed the relevant evidence, including the findings of fact by Judge Jack Anthony Panella who presided over the trial and the hearing for post-conviction relief in the state court. The court had before it the testimony of witnesses, as well as the affidavit of Mark Medvesky. According to the affidavit, while Mr. Medvesky was sitting at counsel table, he heard the judge use the words "perjured testimony" at a side bar conference attended by his co-counsel and the assistant district attorney. The court, after considering all the evidence, found that the words "perjured testimony" were not loud enough for the jury to have heard them. In addition, the statement was not made while the defendant was on the stand. The Superior Court affirmed these findings on appeal.Commonwealth v. Weber, No. 432 EDA 2002 (Pa.Super.Ct. Aug. 15, 2003).
Under § 2254(e)(1), "a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Petitioner has not proffered any clear and convincing evidence that the state court finding was in error. What Mr. Medvesky "believed" someone else heard is not compelling in light of the other evidence on the point before the state court judge.
We must also consider § 2254(d)(2) which states:
An application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
. . .
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
We have reviewed the record and find there was no "unreasonable determination of the facts" by the state court. Petitioner cannot meet the requirements under either § 2254(e)(1) or § 2254(d)(2) for post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 235-36 (3d Cir. 2004).
Accordingly, the motion of Michael Paul Weber to alter or amend the judgment will be denied.