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
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
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
Petitioners' contention that their procedural default can be considered
because there are seeking relief on the grounds of actual innocence is
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 ...