ROBINSON v. WENEROWICZ et al

Filing 23

ORDER THAT THE MOTION TO RECONSIDER FILED BY PETITIONER IS DENIED, ETC... SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 11/5/13. 11/6/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RUSSELL ROBINSON
v.
MICHAEL WENEROWICZ, et al.

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CIVIL ACTION

No. 11-4032

MEMORANDUM AND ORDER
J. WILLIAM DITTER, JR., J
AND NOW, this 5th day of November, 2013, upon consideration of Petitioner’s
objections to my July 23, 2013, memorandum and order, which I have construed as a
motion for reconsideration,1 I make the following findings and reach the following
conclusions:
1.

On June 20, 2011, Petitioner filed a counseled petition for a writ of habeas
corpus asserting two claims of trial court error. After review of the
arguments and evidence, I found that Petitioner’s claims were meritless and
non-cognizable. See Stone v. Powell, 428 U.S. 465 (1976); Heck v.
Humphrey, 512 U.S. 477, 482 (1994). As a result, I denied the petition with
prejudice and without a hearing, and ordered that a certificate of
appealability not be issued. Presently before me is Petitioner’s motion for
reconsideration, asking the Court to withdraw its order and grant habeas
relief.

2.

Federal Rule of Civil Procedure 59(e) and Local Civil Rule 7.1(g) of the
United States District Court for the Eastern District of Pennsylvania allow
parties to file motions for reconsideration or amendment of a judgment.
Fed. R. Civ. P. 59(e); E.D. Pa. R. Civ. P. 7.1(g). These motions should be
granted sparingly, reconsidering the issues only when: (1) there has been an

1

See, e.g., Graco Children's Products, Inc.. v. Regalo Intern., LLC, 77 F.Supp.2d 660,
661 n.1. (E.D. Pa. 1999) (noting that the request for reconsideration was contained in a letter that
did not comply with Federal Rule of Civil Procedure 7 or Local Rule of Civil Procedure 7.1, and,
despite this, the court considered the letter as a motion for reconsideration).

intervening change in controlling law; (2) new evidence has become
available; or (3) there is a need to prevent manifest injustice or correct a
clear error of law or fact. North River Ins. Co. v. CIGNA Reinsurance Co.,
52 F.3d 1194, 1218 (3d Cir. 1995). Mere dissatisfaction with the Court’s
ruling is not a proper basis for reconsideration as it is improper “to ask the
Court to rethink what [it] had already thought through – rightly or
wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109,
1122 (E.D. Pa. 1993) (internal quotation marks omitted).
3.

Petitioner argues that I must re-examine my decision because of a clear
error of law or fact and manifest injustice. In support thereof, he contends
for the first time that counsel throughout his direct appeal process and in the
instant habeas petition failed to properly present his motion to suppress
claim as one of ineffective assistance of counsel rather than trial court
error.2 See Kimmelman v. Morrison, 477 U.S. 365 (1986) (Stone restriction
on federal habeas review of Fourth Amendment claims does not apply to
ineffective assistance of counsel claims based on deficient representation
with respect to a Fourth Amendment issue).

4.

Petitioner’s claim of ineffective assistance of counsel was never presented
to any state court. Villot v. Varner, 373 F.3d 327, 337 (3d Cir. 2004) (a
petitioner exhausts his federal claims by fairly presenting each claim at each
stage of the state’s established review process). I note, however, that the
Pennsylvania courts favor the presentation of ineffective assistance of
counsel claims on collateral appeal rather than direct appeal.
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Because Petitioner
never filed a collateral appeal, he did not present his claim of ineffective
assistance of counsel to the state court. His time for filing a collateral
appeal has expired. As a result, Petitioner has no corrective process
available at the state level and his claim is considered exhausted. See
Leyva v. Williams, 504 F.3d 357, 368-69 (3d Cir. 2007). Because
Petitioner was required to present his claim of ineffective assistance of
counsel on collateral review per Grant, and he failed to comply with that
state rule, his claim is procedurally defaulted. Id. at 365. Nonetheless,
although I find the claim is meritless, I will discuss it now.3

2

Petitioner does not address his claim that the court failed to properly calculate restitution
in the instant motion for reconsideration; therefore, that claim will not be addressed here.
3

I note that direct appeal counsel could not be deemed ineffective for failing to present a
claim of ineffective assistance of counsel when such a claim is properly presented on collateral
2

5.

Petitioner argues that, because he and his co-defendant had conflicting
interests, trial counsel was ineffective for failing to draft an individualized
written motion to suppress instead of verbally joining in his co-defendant’s
written motion at the suppression hearing. Petitioner’s claim of ineffective
assistance is governed by Strickland v. Washington, 466 U.S. 668, 687
(1984), which establishes that on federal habeas review, a petitioner must
establish at a minimum that his counsel was responsible for a deficient
performance which prejudiced the defendant.

6.

Petitioner’s claim of ineffective assistance of counsel is without merit.
Petitioner alleges that counsel was ineffective for failing to file an
individual written motion to suppress (N.T. 12/16/08, at 3-5); however,
counsel did submit a written brief in support of his motion to suppress at the
conclusion of the suppression hearing. (N.T. 12/17/08, at 137-139; 1/23/09,
at 41-42); see also Answer to Pet., at Ex. “E.” I have reviewed the brief and
notes of testimony from the three day suppression hearing and conclude that
counsel effectively represented Petitioner’s interests in advocating for the
suppression of evidence.4 (N.T. 12/16/08, at 79-92; N.T. 12/17/08, at 5482, 93-100, 102-103, 120-127, 131-132; N.T. 1/23/09, 32-33). Thus, any
alleged harm that may have resulted from counsel’s initial failure to file a
separate written motion to suppress did not prejudice Petitioner because
counsel orally advocated for Petitioner at the hearing on the motion to
suppress and in the brief filed prior to the court’s decision. As a result,
Petitioner’s claim of ineffective assistance of counsel is denied.

7.

In sum, Petitioner does not point to any “new” factual or legal issue that
would alter my disposition of this matter, nor does he present any clear error
of law or fact that would necessitate a different ruling. Furthermore, he has

appeal. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (counsel cannot be
deemed ineffective for failing to raise a meritless claim).
4

The court ultimately refused to suppress the fruits of the search conducted underneath
the front passenger seat of the vehicle in question, but granted Petitioner’s motion to suppress
certain statements made at the police station. On direct appeal, the state court affirmed the trial
court’s decision regarding the suppression of evidence after concluding that the suppression court
had not violated the precepts of Terry v. Ohio, 392 U.S. 1, (1968), because federal agents
possessed reasonable suspicion to stop the vehicle in question. Commonwealth v. Robinson, No.
1589 EDA 2009, 4-8 (Pa. Super. June 30, 2010).
3

not demonstrated that manifest injustice will result from my ruling. As a
result, his motion to reconsider is denied.
Accordingly, I HEREBY ORDER that the motion to reconsider (Doc. Nos. 20,
21) filed by Petitioner is DENIED. I FURTHER ORDER that for the reasons set forth
at the Conclusion of my memorandum of July 23, 2013, there is no need for an
evidentiary hearing and no certificate of appealability will be issued pursuant to 28 U.S.C.
§ 2253 because Petitioner has failed to make a substantial showing of denial of a
constitutional right.

/s J. William Ditter, Jr.
J. WILLIAM DITTER, JR., J

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