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June 2, 2004.


The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge


Petitioners bring this motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e) seeking reconsideration of this court's order of February 11, 2004, which denied petitioners' § 2255 motion. A motion to reconsider a § 2255 ruling shall be filed no later than ten days after entry of the challenged order. Williams v. United States, 984 F.2d 28 (2d Cir. 1993). In the instant case, the motion was timely filed within the ten day limitation period.

  A Rule 59(e) motion to alter or amend a judgment should only be granted where the court has overlooked factual issues or controlling decisions which were presented to it on the underlying motion. Cohen v. Konig, 932 F. Supp. 505, 506-07 (S.D.N.Y. 1996); Parkas v. Ellis, 783 F. Supp. 830 (S.D.N.Y.), aff'd. 979 F.2d 845 (2d Cir. 1992). Rule 59(e) may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment. F.D.I.C. V. World University, Inc., 978 F.2d 10, 16 (1st Cir. 1992).

  Rule 59(e) "is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1994). The decision to grant or deny a Rule 59(e) motion rests in the discretion of the district court. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

  In ruling on petitioners' § 2255 motion, this court found that six of the grounds raised therein had been procedurally defaulted. Petitioners now assert that they are actually innocent of the sentences imposed, and in such circumstances, a habeas court can apply the miscarriage of justice exception to a procedural default to correct a fundamentally unfair incarceration. Washington v. James, 996 F.2d 1442, 1450 (2d Cir. 1993), and/or that the six grounds were not defaulted because they raised an ineffective assistance of counsel claim.

  Petitioners argue when there is a general verdict of conviction for conspiring to possess a controlled substance, and more then one substance is involved, the court is to assume the conviction is for conspiracy to possess a controlled substance that carries most lenient statutorily prescribed sentence, but the trial court, although it did not have jurisdiction to do so, gave them illegal sentences that exceeded the most lenient statutory prescribed sentence. United States v. Barnes, 158 F.3d 662 (2d Cir. 1998). Therefore, their § 2255 motion could be construed as seeking habeas relief on the grounds of actual innocence, and is not subject to procedural default.

  The holding in Barnes, is not applicable in the instant case. In Barnes the jury returned a general guilty verdict on a single count of conspiracy involving multiple controlled substances. The counts upon which petitioners Miller and Cobbs were convicted did not involve multiple controlled substances.

  Petitioner Miller was convicted on a single count of Conspiracy to Possess and Distribute and to Distribute Cocaine Base, a single count of Aiding and Abetting Possession with intent to Distribute Cocaine, and two individual counts of Aiding and Abetting Possession with Intent to Distribute Cocaine Base.

  Petitioner Cobbs was convicted on individual counts of Conspiracy to Possess With Intent to Distribute and to Distribute Cocaine base; Aiding and Abetting Possession With Intent to Distribute Cocaine Base; Aiding and Abetting Possession With Intent to Distribute Methamphetamine; and, Unlawful Possession of a Firearm by a Felon.

  Therefore, since there was only one controlled substance involved in each of the narcotic convictions of these two individuals, there was no statutory compunction for the court to impose sentences shorter then they received.

  With regard to petitioner Walker, even if he was convicted on a single count containing multiple controlled substances, unlike the appellant in Barnes, the jury also convicted Walker of possession with attempt to distribute cocaine base. In United States v. Orozco-Prada, 732 F.2d 1076, cert. denied, 469 U.S. 845, S. Ct., L. Ed.2d (1984), which Barnes itself affirmed as authorative, the Second Circuit adopted an exception to the general verdict doctrine, citing, United States v. Peters. 617 F.2d 503 (7th Cir. 1980). Peters holds that where a jury also convicts a defendant of offenses that were the object of an alleged conspiracy, it is reasonable to conclude that the jury found the defendant guilty of conspiracy to commit that substantive offense. Id. at 506. Since Walker was also convicted of possession with intent to distribute cocaine base, the court could reasonably infer that the jury convicted Walker for conspiracy to possess cocaine base despite the absence of a special verdict on that count.

  Petitioners' contention that their procedural default can be considered because there are seeking relief on the grounds of actual innocence is without merit.

  Petitioners' further assert that the six claims set forth in their petition at paragraphs 2, 4, 5, 6, 7 and 8, were not procedurally defaulted because they requested that they all be considered under ineffective assistance of counsel. In their current motion, petitioners concede that advisory trial counsel Sal Piemonte, Esq., was not ineffective at trial, but claim that he was ineffective as appellate counsel. (Petition p. 13).

  In order to sustain a claim for ineffective assistance of trial counsel it must be shown that 1) counsel' performance was deficient and, (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2952, 2054, 90 L.Ed.2d 674 (1984). To establish prejudice, "[t]he 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 the confidence in the result Id. at 694. The ...

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