MARGO K. BRODIE, District Judge.
Petitioner Frederick Diaz brought the above-captioned pro se petition pursuant to 28 U.S.C. § 2254, in which he alleged that he was being held in state custody in violation of his federal constitutional rights. On September 24, 2012, the Court denied Petitioner's habeas petition, finding it barred by the statute of limitations. Petitioner has filed a motion for reconsideration of the Court's Memorandum and Order ("September 24, 2012 Decision"). For the reasons set forth below, Petitioner's motion is denied.
The Court assumes familiarity with the September 24, 2012 Decision, which sets out the facts more fully. Petitioner's underlying habeas claims arise from a judgment of conviction after a jury trial in New York Supreme Court, Kings County, for four counts of murder (two counts of murder in the second degree and two counts of felony murder).
On February 28, 2006, Petitioner filed a post-conviction motion in New York State court pursuant to N.Y. Criminal Procedure Law § 440 seeking an order directing DNA testing on evidence from the crime scene and vacating or modifying his sentence based on: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) newly discovered evidence. (Pet. Writ of Habeas Corpus ("Petition") 4; Resp. Opp. Petition Ex. J, Pet. 440 motion.) In its opposition papers, the People noted that many of Petitioner's claims were based on the trial record, and thus, they were procedurally barred. (Resp. Opp. Petition Ex. K ("People's Mem. Opp. 440 motion") 1-5.) In his reply papers, Petitioner claimed he was actually innocent. (Petition Ex. C, Pet. Reply 440 motion 15-16.) On August 27, 2007, the state court denied Petitioner's 440 motion. (Resp. Opp. Petition Ex. L, Judge Reichbach's Decision and Order.) The court found that (1) the crime scene evidence was no longer available for testing; (2) the "vast majority of [Petitioner's] claims [were] based on the record" and therefore barred from review; (3) Petitioner failed to show ineffective assistance of counsel; and (4) the sentence imposed was "not illegal or otherwise invalid." (Id.) On December 24, 2007, the Appellate Division denied leave to appeal (Petition Ex. C, Appellate Division decisions.) On February 21, May 19, and September 9, 2008, the Appellate Division denied Petitioner's repeated motions for reargument. (Id.)
On September 23, 2008, Petitioner filed his habeas petition with this Court. In the petition, Petitioner asserted claims of (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) newly discovered evidence through DNA tests; and (4) actual innocence. The Court denied his petition, finding that Petitioner's claims were barred by the statute of limitations set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Diaz v. Bellnier, No. 08-CV-4009, 2012 WL 4447357 (E.D.N.Y. Sept. 24, 2012). On October 4, 2012, Petitioner filed this motion for reconsideration. Petitioner seeks reconsideration of the Court's September 24, 2012 Decision denying his petition, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure (Pet. Recons. Mem.); see also Fed.R.Civ.P. 59(e) ("A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.").
The standard for granting a motion to reconsider a judgment "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (citations omitted); see also Lesch v. United States, 372 Fed.Appx. 182, 183 (2d Cir.2010) (same) (quoting Shrader, 70 F.3d at 257); Smith v. Schweiloch ("Schweiloch") (No. 12-CV-3253, 2012 WL 2277687, at *1 (S.D.N.Y. June 18, 2012) ("The moving party is required to demonstrate that `the Court [] overlooked controlling decisions or factual matters that were put before it on the underlying motion, and which, had they been considered, might have reasonably altered the result before the court.'") (alteration in original) (quoting Vincent v. Money Store, No. 03-CV-2876, 2011 WL 5977812, at *1 (S.D.N.Y. Nov. 29, 2011)); Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (requiring the moving party to "set[] forth concisely the matters or controlling decisions which counsel believes the Court has overlooked").
It is thus "well-settled" that a motion for reconsideration is "not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a `second bite at the apple.'" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998)), as amended (July 13, 2012), cert. denied, 569 U.S. ___, 133 S.Ct. 1805, 185 L.Ed.2d 812 (2013). In other words, "[r]econsideration of a court's previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Hidalgo v. New York, No. 11-CV-5074, 2012 WL 3598878, at *1 (E.D.N.Y. Aug. 20, 2012) (citation and internal quotation marks omitted). A motion for reconsideration "should not be used as a vehicle simply to voice disagreement with the Court's decision, ... nor does it present an occasion for repeating old arguments previously rejected or an opportunity for making new arguments that could have previously been made." Premium Sports Inc. v. Connell, No. 10-CV-3753, 2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (alteration, citation and internal quotation marks omitted); see also Smith v. New York City Dep't of Educ., 524 Fed.Appx. 730, 734 (2d Cir. 2013) ("A motion for reconsideration is not the appropriate mechanism for a party to relitigate an issue already decided or to advance new facts, issues, or arguments not previously presented to the court."); Stoner v. Young Concert Artists, Inc., No. 11-CV-7279, 2013 WL 2425137, at *1 (S.D.N.Y. May 20, 2013) ("A motion for reconsideration is an extraordinary remedy, and this Court will not reconsider issues already examined simply because [a party] is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources." (alteration in original) (citations and internal quotation marks omitted)).
The Court's September 24, 2012 Decision denied Petitioner's habeas petition because (1) Petitioner had failed to file his petition within the statute of limitations by more than 11 years, Petitioner had not asked the Court to equitably toll his petition based on a theory that he had been pursuing his rights diligently and that
Petitioner now seeks reconsideration on the basis that the Court failed to discuss all the facts in the proffered police reports that Petitioner believes are salient to his claim of actual innocence. (Pet. Recons. Mem. 2-3.) In a supplemental submission Petitioner also cites two cases he characterizes as controlling decisions on the analysis of claims of "actual innocence" that this Court did not follow in its denial of his petition. (Letter from Pet. dated Nov. 5, 2012 ("Pet. Supp.") (citing Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003) and Pagan v. Keane, 984 F.2d 61 (2d Cir. 1993)).) Petitioner further requests an evidentiary hearing and that counsel be appointed to contact his trial counsel and determine if the police reports had in fact been turned over to his trial counsel and, if so, trial counsel's reasons for not using the reports at trial.
Petitioner's arguments do not meet the standard for granting reconsideration. Petitioner has not shown that (1) the Court overlooked any relevant controlling decisions or (2) the Court overlooked critical facts. See Shrader, 70 F.3d at 257.
The Court denied Petitioner's habeas petition, including Petitioner's request for an evidentiary hearing, because the petition did not fall within the statute of limitations imposed by the AEDPA. Diaz, 2012 WL 4447357, at *9. The Court concluded that Petitioner could not make the requisite threshold showing of actual innocence necessary to excuse his untimely filing of the petition, applying the standard articulated by the Supreme Court in Schlup v. Delo and the Second Circuit Court in Rivas v. Fischer. See Diaz, 2012 WL 4447357, at *6-8 (citing Schlup, 513 U.S. at 324, 115 S.Ct. 851 and Rivas, 687 F.3d at 541). Because the petition was barred by the AEDPA-imposed statute of limitations, the Court did not reach the merits of Petitioner's claims. See id. at *4 ("Before proceeding to the merits of the instant petition, the Court must consider whether the petition was timely-filed.").
In a supplemental letter to his motion for reconsideration, Petitioner cites two Second Circuit decisions that he characterizes as controlling law that were not followed by this Court in its September 24, 2012 Decision. (Pet. Supp. 1, 3 (citing Whitley, 317 F.3d 223 and Pagan, 984 F.2d 61).) The first case cited by Petitioner,
As for the second case cited by Petitioner, Whitley v. Senkowski, it is a 2003 case which addressed whether Schlup requires an actual innocence exception to the AEDPA-imposed one-year statute of limitations, and articulated factors for the lower court in that case to consider when determining whether the petitioner was entitled to have the Schlup standard applied in the context of his procedurally-barred habeas claims. Whitley, 317 F.3d at 225-26. Since Whitley was decided in 2003, the Second Circuit has held in Rivas v. Fischer that Schlup does require an "actual innocence" exception to procedural bars in habeas claims, and has articulated factors for district courts to consider in deciding whether the Schlup threshold has been met. Rivas, 687 F.3d at 540 ("[W]e hold that a petitioner who satisfies the Supreme Court's actual-innocence standard may pass through the Schlup gateway and have his substantive claims heard on the merits,
In sum, Petitioner has not established that the Court overlooked any "controlling decisions ... that might reasonably be expected to alter the conclusion reached by the court," and thus Petitioner is not entitled to reconsideration of the Court's September 24, 2012 Decision on this basis. See Shrader, 70 F.3d at 257.
Nor can Petitioner establish that the Court overlooked data or factual matters that, "had they been considered, might have reasonably altered the result before the court." See Schweiloch, 2012 WL 2277687, at *1. Petitioner's central argument is that the Court did not adequately discuss specific facts contained in the police reports that formed the basis for Petitioner's Schlup claim of actual innocence. (Pet. Recons. Mem. 1-3.) In order to succeed on a motion for reconsideration, a moving party must show that a court overlooked data or factual matters entirely — simply arguing that the discussion of those matters was inadequate will not suffice. See Moore v. T-Mobile USA, Inc., No. 10-CV-527, 2013 WL 55799, at *3 (E.D.N.Y. Jan. 2, 2013) ("The fact that this Court did not find that this particular argument merited discussion should not be misconstrued as evidence that this Court overlooked this argument."); United States v. N.Y.C. Transit Auth., No. 04-CV-4237, 2011 WL 4596155, at *1 (E.D.N.Y. Sept. 30, 2011) (rejecting petitioner's argument that the court overlooked undisputed facts in a previous order when the court "expressly rejected the very argument that the [petitioner] now reiterates" with respect to those facts).
As explained by the Court in its September 24, 2012 Decision, this Court reviewed the evidence proffered by Petitioner — including police reports documenting the investigation of the murders for which Petitioner was convicted — and concluded that these were not sufficient to meet the Schlup "actual innocence" threshold, justifying an exception to the statute of limitations that barred Petitioner's claim. The standard articulated by the Supreme Court in Schlup has two prongs. First, the claim must be "credible." "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific
The Supreme Court recently reiterated that the standard for passing through the "actual innocence" gateway to overcome a procedural bar is "demanding." McQuiggin v. Perkins, 569 U.S. ___, ___, 133 S.Ct. 1924, 1936, 185 L.Ed.2d 1019 (2013) ("We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents `evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" (quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851)). Evidence that has been rejected by courts as insufficient to meet this standard includes: arguments that a Petitioner "was never heard" on a point, Diaz v. United States, No. 11-CV-2248, 2012 WL 2864526, at *4 (S.D.N.Y. July 12, 2012); general "[a]llegations of insufficient evidence and coerced confessions," Thompson v. Zwierzyna, No. 12-CV-123, 2012 WL 5269225, at *6 (E.D.Pa. Aug. 23, 2012), report and recommendation adopted sub nom. Thompson v. Southers, No. 12-CV-123, 2012 WL 5269261 (E.D.Pa. Oct. 25, 2012); exculpatory letter written by a cooperating witness that had been withheld by prosecution and that undermined the credibility of another prosecution witness, Donato v. United States, No. 09-CV-5617, 2012 WL 4328368 (E.D.N.Y. Sept. 20, 2012); unsworn, unofficially translated statement implicating another person in the crime for which petitioner was convicted, Melendez v. Lempke, No. 09-CV-4373, 2012 WL 3887093 (E.D.N.Y. Sept. 7, 2012); and "`[n]ewly discovered' affidavits and phone records offering what is claimed to be a conflicting narrative to the one presented" by a key witness at trial, DiMattina v. United States, No. 13-CV-1273, 949 F.Supp.2d 387, 421, 2013 WL 2632570, at *32 (E.D.N.Y. June 13, 2013). In Rivas, the Second Circuit noted that nonscientific evidence of a petitioner's innocence, including "evidence that [the victim] was involved in an intimate relationship with a man other than Rivas around the time of her murder, that she had lodged a complaint against a coworker not long before her death, and that one of her neighbors had been arrested for burglary and was known to peer through windows, might suggest that the police failed to pursue other leads in the investigation, but does not compellingly point to Rivas's innocence. The evidence, taken together, raises doubts about Rivas's guilt, but it does not, in isolation, so undermine the State's circumstantial evidence as to satisfy the Schlup standard." Rivas, 687 F.3d at 545-46.
As with these cases, the Court found that Petitioner's evidence of actual innocence did not meet the Schlup standard in that it was neither "credible" nor "compelling." Diaz, 2012 WL 4447357, at *7. As the Court explained, Petitioner failed to establish a "credible" claim because the evidence relied on by Petitioner, which, as he admits, are "primarily based upon the police reports," (Petition 14), is not the kind of "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence" required to meet the first Schlup prong as "new reliable
Because Petitioner's proffered evidence does not constitute the type of "new reliable evidence" held by courts to satisfy the first prong of the Schlup standard, on this basis alone, Petitioner is not entitled to an equitable exception to the AEDPA-imposed statute of limitations. The Court did, however, consider the hypothetical situation, "assum[ing], arguendo, that the police reports could be considered new evidence," and concluded that the evidence also did not meet the "compelling" prong of Schlup. Diaz, 2012 WL 4447357, at *7-8. Despite Petitioner's contention that the Court overlooked key factual issues here, the Court did consider the evidence and rejected the Petitioner's argument. See id. at *7 ("The Court has reviewed the police report excerpts submitted by Petitioner, along with the trial record and the transcribed video confessions of Petitioner and his co-defendant, and does not find the police report to present any reliable evidence of Petitioner's innocence.").
The police reports presented by the petitioner offer several novel factual matters that Petitioner argues were not presented to the jury, including, inter alia, that the statement made to the police by the victim's father on the night of the murder was inconsistent with the statement he made at trial; that the police interviewed a neighbor in the building who reported seeing two Hispanic males in the apartment building approximately 90 minutes prior to the occurrence of the murders, knocking on the door of another family with the same last name as the victims; and the complete statements of the two informants to police.
As discussed in the Court's September 24, 2012 Decision, the proffered evidence is not "compelling" under Schlup. "For the claim to be `compelling,' the petitioner must demonstrate that `more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or to remove the double negative, that more likely than not any reasonable juror would have reasonable
The evidence does introduce additional inconsistencies between the statements of testifying witnesses, the physical evidence from the crime scene, and the confessions of Petitioner and his co-defendant, and highlights the absence of evidence put forward by the prosecution to corroborate Petitioner's confession, a point raised by his counsel at trial.
In sum, the fact that the police records offered by Petitioner do not meet the first prong of the Schlup assessment as "new reliable evidence" was a sufficient basis on which Petitioner's habeas petition was denied. But even assuming that the police records did meet the first prong of Schlup, the evidence presented by Petitioner does not meet the second prong: that, after considering "all the evidence, old, and new, incriminating and exculpatory," it is more likely than not that no reasonable juror, in light of the new evidence, could have found Petitioner guilty beyond a reasonable doubt. See Schlup, 513 U.S. at 324, 115 S.Ct. 851; House, 547 U.S. at 538, 126 S.Ct. 2064. The evidence does not rise to the "extraordinary" showing required by Schlup. See House, 547 U.S. at 538, 126 S.Ct. 2064 ("[I]t bears repeating that the Schlup standard is demanding and permits review only in the `extraordinary' case." (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851)). For this reason the Court found that Petitioner could not pass through the Schlup gateway, and denied Petitioner's habeas petition as time-barred.
While Petitioner points out that this Court did not consider his constitutional arguments of prosecutorial misconduct in its September 24, 2012 Decision, the Court reiterates that the Schlup gateway is narrowly limited to an assessment of whether a petitioner is entitled to an equitable exception to the statute of limitations because he has presented new reliable evidence of actual innocence. This assessment is separate from the merits of the constitutional claims which, in this case, are Petitioner's assertions of ineffective assistance of counsel and prosecutorial misconduct. Because Petitioner's claims fall outside the AEDPA statute of limitations, this Court is barred from evaluating the merits of those claims.
Finally, although the Court retains discretion to appoint counsel to represent petitioner pursuant to the Criminal Justice Act, because Petitioner has not presented substantial support for an "actual innocence" claim, Petitioner's application for appointment of counsel is denied. See Criminal Justice Act, 18 U.S.C. § 3006A(a)(2) ("Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who ... is seeking relief under section 2241, 2254, or 2255 of title 28."); United States v. Haouari, No. 00-CR-15, 2013 WL 4565298, at *1 (S.D.N.Y. Aug. 28, 2013) ("The paramount factor considered by courts in determining whether to appoint counsel to indigent habeas petitioners is `whether the indigent's position seems likely to be of substance.'" (quoting Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997))).
Petitioner has not demonstrated that the Court overlooked any law or fact in its September 24, 2012 Decision denying Petitioner's habeas petition as time-barred. Consequently, Petitioner is not entitled to the "extraordinary remedy" of reconsideration of this Court's September 24, 2012 Decision. See Stoner, 2013 WL 2425137, at *1 ("A motion for reconsideration is an extraordinary remedy, and this Court will not reconsider issues already examined
For the reasons set forth above, the Court denies Petitioner's motion for reconsideration, and the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). Petitioner's request for appointment of counsel is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
