Perez v. Cully
DECISION AND ORDER denying 22 Motion for Reconsideration. Because Petitioner has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. Signed by Hon. Michael A. Telesca on 8/18/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
No. 1:13-CV-01107 (MAT)
DECISION AND ORDER
-vsMALCOLM R. CULLY, SUPERINTENDENT,
Edwin Perez (“Petitioner”) filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, which was denied by
this Court in a Decision and Order entered April 27, 2017. On
May 10, 2017, Petitioner filed a Motion for Reconsideration of the
Decision and Order denying habeas relief, on the basis that the
Court made several errors in its recitation of the underlying
facts. Respondent has not submitted papers in opposition to the
Motion for Reconsideration. For the reasons set forth below,
reconsideration is denied.
The standard for a motion for reconsideration “is strict, and
reconsideration will generally be denied unless the moving party
expected to alter the conclusion reached by the court.” Shrader v.
Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990);
Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988).
Petitioner asserts that the “Factual Background and Procedural
History” section of the Court’s Decision and Order “involved a
controlling question of facts.” First, according to Petitioner, the
Decision and Order stated that Petitioner’s “DNA was on the handle
of the knife used in the commission of this offense in this
indictment.” (Pet’r Mtn. (Dkt #22) at 1). However, Petitioner
provides no citation to the Decision and Order, and the Court is
unable to find such a statement in its Decision and Order. The
petitioner’s car, one of which tested positive for [the decedent,
Travis] Gray’s blood on the blade and petitioner’s DNA on the
handle.” (Decision & Order (Dkt #23) at 1-2). Petitioner is correct
that it was not Petitioner’s DNA that was found on the handle of
the knife; it was the DNA of co-defendant Anthony Ott (“Ott”). The
Rochester Police Department testified that they found two knives in
Petitioner’s car at the crime scene; one was located inside a cubby
in the driver’s side front door, and the other was underneath the
passenger’s side font seat. (T.177, 401). The knives were submitted
for DNA testing. The blade of the knife found under the seat
contained DNA from Gray, and his friend, Hank Hogan, and the handle
of the knife contained DNA from co-defendant Ott—not Petitioner.
DNA testing also revealed the presence of Petitioner’s blood on the
sleeve of Ott’s shirt. (T.203, 237, 249-50, 425, 429, 431-34).
However, this factual error had no bearing on the Court’s
ultimate decision insofar as the Court dismissed the insufficiency
of the evidence argument as procedurally defaulted under the
adequate and independent state ground doctrine, and did not reach
the merits of the claim. Because Petitioner has failed to adduce
any grounds in support of his reconsideration motion that might
reasonably be expected to alter the conclusion reached by the
Court, his motion must be denied.
Reconsideration is denied. Because Petitioner has not “made a
substantial showing of the denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
August 18, 2017
Rochester, New York.
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