Hamilton v. USA

Filing 12

ORDER entered by Judge Joe Billy McDade on 4/14/2011: For the foregoing reasons, Petitioners Motion for Reconsideration Doc. 9 is DENIED. Accordingly, his Request for an Order Granting his Motion for Reconsideration Doc. 11 is also DENIED, and his Motion for Extension of Time Doc. 10 is MOOT. IT IS SO ORDERED.(JV, )

E-FILED

Thursday, 14 April, 2011 02:24:08 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
MARVIN JAMES HAMILTON,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 10-cv-4028

OPINION & ORDER
Before the Court is Petitioner Marvin James Hamilton’s Motion for
Reconsideration of this Court’s Order and Opinion of December 8, 2010, denying
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255. (Doc. 9). Also pending are a Motion Requesting Order from the Court for a
20-Day Extension of Time to File a Response to Government’s Response to
Petitioner’s Motion (Doc. 10)1 and a Request to Grant his Motion for
Reconsideration (Doc. 11).2

For the following reasons, Petitioner’s Motion for

Reconsideration (Doc. 9) is DENIED. Accordingly, his request for an order granting
his Motion for Reconsderation (Doc. 11) is also DENIED.

The Government elected not to file a Response to Petitioner’s Motion for
Reconsideration, rendering this motion (Doc. 10) MOOT.
2 The full title of Petitioner’s final motion is “Petitioner Request An Order Enter
From the Court Granting his Petition Filed Pursuant to Rule 59(e) Where the
Government Conceded Through Its Silence That Hamilton’s Issues Sufficiently
Warrant Evidentiary Hearing to Determine Whether a New Trial is Suffice.” (Doc.
11).
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BACKGROUND
On October 28, 2008, a jury found Petitioner guilty of Conspiracy to
Distribute Crack Cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846,
and Possession with Intent to Distribute Crack Cocaine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A). (Doc. 4 at 1). Petitioner was sentenced to the mandatory
minimum 240 months imprisonment on each count, to run concurrently, ten years
supervised release, and a $200 special assessment. (Doc. 4 at 2). On March 22,
2010, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28
U.S.C. § 2255. (Doc. 1). In his § 2255 Petition, Petitioner raised two grounds for
relief: 1) ineffective assistance of trial counsel for failure to proffer a “buyer-seller
agreement” jury instruction; and 2) ineffective assistance of appellate counsel for
failure to submit, on direct appeal, newly discovered evidence that one of the
government’s key witnesses at Petitioner’s trial had since violated the cooperation
agreement under which he testified. (Doc. 1 at 4-5).

On September 13, 2010,

Petitioner filed a Motion to Amend his § 2255 Petition due to recent enactment of
the Fair Sentencing Act of 2010 (“FSA”). (Doc. 6). Petitioner alleged that the FSA
should be applied retroactively, and that his sentence should be reduced
accordingly. (Doc. 6 at 17).
On December 8, 2010, this Court entered an Order and Opinion denying
Petitioner’s Motion to Amend and his § 2255 Petition. (Doc. 7). The Court found
that Petitioner’s Motion to Amend would be futile as the FSA does not apply
retroactively, and that Petitioner could not sustain either of his ineffective

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assistance claims. (Doc. 7). With regards to Petitioner’s claim that his appellate
counsel was ineffective, the Court found that Petitioner failed to show that he
suffered any prejudice from the allegedly deficient performance of his counsel. (Doc.
7 at 7). While Petitioner’s case was on direct appeal, the government informed his
counsel that Mr. Simmons, one of the men who testified against Petitioner at trial,
had lied to DEA Agents, after the completion of Petitioner’s trial and in connection
with a separate investigation. (Doc. 1 at 38-39). Petitioner claimed that the fact
that Simmons lied was a violation of the cooperation agreement pursuant to which
Simmons had testified against him, and that this new evidence undermined
Simmons credibility and entitled him to a new trial. (Doc. 1 at 16-23). The Court
found, however, that even without Simmons’ testimony it was unlikely that
Petitioner would have been acquitted, and therefore Petitioner could not show the
requisite prejudice to succeed on his ineffective assistance claim. (Doc. 7 at 8).
Petitioner now asks the Court to reconsider its decision pursuant to Rule
59(e) of the Federal Rules of Civil Procedure. (Doc. 9). Specifically, Petitioner seeks
reconsideration of the Court’s opinion that his appellate counsel was not ineffective
for failing to submit new evidence on appeal.
DISCUSSION
Petitioner brings his Motion for Reconsideration pursuant to Federal Rule of
Civil Procedure 59(e). (Doc. 9 at 1). “A court may grant a Rule 59(e) motion . . . if
the movant presents newly discovered evidence that was not available at the time of
trial or if the movant points to evidence in the record that clearly establishes a

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manifest error of law or fact.” Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).
Here, Petitioner alleges that the Court committed a manifest error of law when it
held that he was not prejudiced by his appellate counsel’s failure to raise new
evidence on appeal.

(Doc. 9).

In making its original determination, the Court

examined the test articulated by the Seventh Circuit for what type of newly
discovered evidence is sufficient to justify a new trial. (Doc. 7 at 8). Pursuant to
this test, Petitioner must show that the new evidence at issue “(1) came to the
[Petitioner’s] knowledge only after trial; (2) could not have been discovered sooner
through the exercise of due diligence; (3) is material, and not merely impeaching or
cumulative; and (4) would probably lead to an acquittal in the event of a new trial.”
United States v. Hubbard, 22 F.3d 1410, 1423 (7th Cir. 1994).
In its Order and Opinion of December 8, 2010, the Court stated that there
was a clear issue with regards to the fourth prong of the test, i.e., that the
presentation of the fact that Simmons lied to DEA Agents after Petitioner’s trial, on
an unrelated matter, would lead to an acquittal of Petitioner in the event of a new
trial. (Doc. 7 at 8-9). The Court made this determination based upon the fact that,
even barring Simmons’ testimony, there was enough other evidence at trial to
justify Petitioner’s conviction. (Doc. 7 at 8). This holding does not implicate, as
alleged by Petitioner, that the Court found that the newly discovered evidence
fulfilled the other prongs of the stated test. The Court simply did not consider those
prongs because it was clear that Petitioner failed under the fourth, and therefore
was not prejudiced by the performance of his appellate counsel.

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However,

Petitioner would also fail under the third prong, which is that the new evidence
must be material rather than merely impeaching or cumulative. See Hubbard, 22
F.3d at 1423. The new evidence would only serve to impeach Simmons credibility,
it would not go to any substantive portion of Petitioner’s case. Moreover, as the
Court found in its previous Order and Opinion, Simmons’ testimony was cumulative
of at least one other co-conspirator, and therefore was not necessary to establish
Petitioner’s guilt. Accordingly, the Court finds that a manifest error of law was not
committed, and Petitioner’s Motion for Reconsideration is DENIED.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Reconsideration (Doc. 9) is
DENIED.

Accordingly, his Request for an Order Granting his Motion for

Reconsideration (Doc. 11) is also DENIED, and his Motion for Extension of Time
(Doc. 10) is MOOT. IT IS SO ORDERED.

CASE TERMINATED.

Entered this 14th day of April, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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