Riley v. Meyers, et al
Filing
21
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Petitioner, James W. Rileys, Independent Action for Relief from Final Order, or Alternatively, Motion for Relief from Final Order Pursuant to Fed. R. Civ. Proc. 60( b) (Doc. 19) is DENIED. Because Petitioner has not come close to making the required threshold showing and the Court denied the motion after a thorough and generous review of the record in this case and similar habeas petition, the Court finds no ba sis to appoint counsel. Therefore, Petitioners Motion for the Appointment of Habeas Corpus Counsel under The Criminal Justice Act 18 U.S.C. § 3006(A) (Doc. 20) is DENIED. An appropriate Order is filed simultaneously with this Memorandum. re [1 9] MOTION for Relief from Judgment 17 Memorandum re R&R (Order to follow as separate docket entry),, 18 Order on Motion to Vacate, Order on Report and Recommendations,,,, filed by James W. Riley Signed by Honorable Richard P. Conaboy on 5/1/18. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES W. RILEY,
:
:
:CIVIL ACTION NO. 3:00-CV-1183
:
:(JUDGE CONABOY)
:(Magistrate Judge Schwab)
:
:
:
Petitioner,
v.
ROBERT W. MYERS, et al.,
Respondents.
___________________________________________________________________
MEMORANDUM
Petitioner, James W. Riley’s, Independent Action for Relief
from Final Order, or Alternatively, Motion for Relief from Final
Order Pursuant to Fed. R. Civ. Proc. 60(b) (Doc. 19) is pending
before the Court.
With this filing, Petitioner seeks review of the
Court’s previous decisions denying habeas relief.
(Id.)
He
asserts that McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), and
Satterfield v. District Attorney of Philadelphia, 872 F.3d 152
(2017), require a different outcome and his claims for ineffective
assistance of counsel should be reviewed on the merits based on his
showing of actual innocence.
(Id.)
The Court disagrees for the
reasons discussed below.
I. Background
In February 1993, Petitioner was convicted by a jury of first
degree murder in the July 1991 shooting death of his stepdaughter.
(Doc. 12 at 4; Doc. 15 at 2.)
to life imprisonment.
On August 11, 1993, he was sentenced
(Doc. 12 at 4.)
At trial, Petitioner
requested but was refused a jury instruction as to voluntary
intoxication.
(Doc. 12 at 4.)
Following direct appeal to the
Pennsylvania Superior Court, the conviction was vacated and the
matter was remanded for a new trial.
(Doc. 12 at 4; Doc. 15 at 2.)
Petitioner asserts the Superior Court’s decision was based on the
determination that sufficient evidence was presented to merit
Petitioner’s requested jury instruction of voluntary intoxication.
(Doc. 12 at 4.)
(Id.)
Petitioner’s new trial was held in February 1996.
On March 1, 1996, a jury again convicted Petitioner of first
degree murder and Petitioner was sentenced to life imprisonment.
(Id.)
Petitioner filed a direct appeal with the Pennsylvania
Superior Court raising the issue that the voluntary intoxication
jury instruction was in error.
(Id.)
By decision dated October
21, 1996, and filed on December 1, 1996, Petitioner’s conviction
and sentence were affirmed by the Pennsylvania Superior Court.
(Doc. 15 at 2.)
No allowance of appeal to the Pennsylvania Supreme
Court was filed, and no PCRA action was filed.
(Doc. 17 at 2-3.)
Petitioner filed the 28 U.S.C. § 2254 at issue here on June
30, 2000.
(Doc. 1.)
Petitioner identified four grounds for
relief: 1) his conviction was obtained by a violation of the
protection against double jeopardy; 2) he was denied effective
assistance of counsel; 3) he was denied the right to appeal; and 4)
he was denied access to the courts.
(Doc. 1 at 4-5.)
He
acknowledged that none of the claims had been previously presented
in any other court.
(Doc. 1 at 5.)
2
While difficult to parse,
Petitioner seemed to indicate in his supporting Memorandum of Law
that the violation of his constitutional rights was grounded in the
performance of trial counsel and the prosecutor related to the
voluntary intoxication defense.
(See Doc. 1 at 9.)
A Report and
Recommendation dated August 11, 2000, recommended that the Court
deem the petition withdrawn based on Petitioner’s response to the
Order which directed him to inform the Court whether he wanted to
proceed with his Petition as filed or withdraw it and file an all
inclusive petition within one year.
(Docs. 5-7.)
By Memorandum
and Order of September 22, 2000, the Court adopted the Report and
Recommendation and deemed the petition withdrawn.
(Doc. 8 at 3.)
On May 3, 2002, Petitioner filed another 28 U.S.C. § 2254
petition related to his 1993 first degree murder conviction.
(Doc. 1. Civ. A. No. 3:02-CV-750.)
Among his claims, Petitioner
asserted ineffective assistance of counsel regarding the defenses
presented, including intoxication, and failure to preserve and
raise the issue of legal, factual or actual innocence based on his
lack of intent.
(Doc. 1 at 20-29, Civ. A. No. 3:02-CV-750.)
Petitioner provided factual averments not contained in his
previous petition, pointing to trial counsel’s failure to
interview essential witnesses and elicit testimony on the issue of
intent at trial.
(Id.)
In support of these claims, Petitioner
identified evidence presented at trial about his intoxication at
the time of the incident and the period of time leading up to it,
3
evidence about his general behavior, and expert reports related to
the issues.
(Id. at 21-24, 26.)
The Report and Recommendation
filed on September 11, 2002, concluded that the petition was
barred by the AEDPA’s statute of limitations.
No. 3:02-CV-750.)
(Doc. 24, Civ. A.
After considering equitable tolling principles
and related matters, the Court concluded the May 3, 2002, Petition
was barred by the applicable statute of limitations provisions of
28 U.S.C. § 2244(d).
(Doc. 31.)
Petitioner appealed the decision
to the Third Circuit Court of Appeals (Docs. 34, 35, Civ. A. No.
3:02-CV-750 (Appellate Docket number 02-4530).)
By Order of June
20, 2003, the Circuit Court denied Petitioner’s request for a
certificate of appealability, concluding that Petitioner’s June
2002 action was barred by the statue of limitations found in 28
U.S.C. § 2244(d) and equitable tolling did not apply.
See Third
Circuit Court of Appeals No. 02-4530 June 20, 2003, Docket Entry.
The Order added that
[a]ppellant had until 1/16/98 to file a
timely Section 2254 petition. His petition
was dated 5/3/02. Because appellant shows
neither that he diligently pursued his claims
nor that he was prevented in some
extraordinary way from doing so, there are no
grounds for equitable tolling. Appellant’s
assertion that he lacked access to his
complete trial record, without more, does not
justify equitable tolling.
(Id. (citations omitted).)
A petition for a writ of certiorari in
the United States Supreme Court was docketed on August 21, 2003,
at No. 03-5999.
(Doc. 40.)
By Order of October 3, 2003, the
4
Court denied the petition for a writ of certiorari.
(See Doc.
41.)
On September 10, 2004, Petitioner filed another 28 U.S.C. §
2254 petition asserting error related to his 1993 conviction.
(Doc. 1, Civ. A. No. 3:04-CV-2008.)
In support of his claim that
there was insufficient evidence to convict him of first degree
murder, Petitioner asserted that “[e]vidence, including
defendant’s confession and witnesses, identification of Appellant
as shooter was sufficient to support voluntary or involuntary
manslaughter on the ground of voluntary intoxication, conviction
and not first degree murder.”
2008.)
(Doc. 1 at 31, Civ. A. No. 3:04-CV-
In support of his ineffective assistance of counsel claim,
Petitioner asserts that “[i]f counsel had called witnesses to
testify in Appellant’s defense, there is reasonable probability
that he would have been acquitted of voluntary or involuntary
manslaughter.”
(Id. at 35-36.)
The Magistrate Judge’s September
30, 2004, Report and Recommendation determined that the filing was
a second or successive petition which should be dismissed and
Petitioner could move in the Third Circuit for leave to file a
successive petition.
(Doc. 6 at 4, Civ. A. No. 3:04-CV-2008.)
The Court adopted the Report and Recommendation by Order of
October 21, 2004.
(Doc. 8, Civ. A. No. 3:04-CV-2008.)
Over two years after the Court issued the closing Order in
Civ. A. No. 3:04-CV-2008, Petitioner filed the Petition for Relief
5
in Accordance to F.R.C.P. Rule 60(b)(6) in case number 3:00-CV1183.
(Doc. 9)
The May 3, 2007, filing was accompanied by a
brief in support (Doc. 10) in which Plaintiff asserts that the
District Court should have held a hearing before taking action on
his petition.
(See Doc. 10 at 1.)
Plaintiff further averred that
[t]rial counsel failed to call important
character witnesses–-the bartender and
barmaid at Kates bar in Mercersburg, PA–-whom
witnesses the amount and length of time
petitioner was inebriated, in order to
substantiate his claim of diminished
capacity. Moreover, as at the penalty phase,
trial counsel failed to call–-Major Tommy
Keefer, Robert Brindle, and Robert Hoffman–all of whom trial counsel new [sic] as
character witnesses that would demonstrate
petitioner’s character under normal
circumstances. The former allegations
testimony was critical to the defense because
in order to convict the petitioner with the
requisite “intent” he would have to have his
full faculties at the time of the charged
crime.
Certainly, there could be no reasonable
basis for omitting this evidence when trial
counsel was asserting a diminished capacity
defense. This testimony would have
demonstrated that petitioner could have not
had the for-thought or required intent for
first degree murder. The latter would have
demonstrated petitioner [sic] impeccable
character in normal circumstances, in order
to demonstrate the mitigating circumstances
for sentencing purpose, as well as supporting
his diminished capacity defense.
(Doc. 10 at 3.)
On May 18, 2007, the Court denied Petitioner’s
Rule 60(b)(6) motion on the basis that it was not filed within a
reasonable time of the September 22, 2000, Order (Doc. 8) from
6
which it sought relief.
(Doc. 11.)
Over six years passed before Petitioner filed another
document in the above-captioned matter.
On January 1, 2014,
Petitioner filed the “Motion Requesting to Vacate Judgment Entered
on September 22nd, 2000, Due to Exceptional Circumstances in the
Discovery of Previous Unavailable Evidence and an Intervening
Change in Controlling Law Pertaining to Petitioner’s First Timely
Filed Habeas Petition Pursuant to Federal Rules of Civil Procedure
60(b)(2) and 60(b)(6) Providing Extraordinary Relief.”
(Doc. 12.)
With this motion, Petitioner’s focus was counsel’s error in not
asserting on direct appeal that the trial court erred in
permitting Petitioner’s wife to testify against him, alleging that
this was a violation of Pa. C.S. § 5913(4) which addresses spousal
privilege.
(Doc. 12 at 5.)
He submitted an affidavit from his
wife, Connie Riley, alleging that it stated “she did not want to
testify at Petitioner’s trial but that she was forced to do so by
the Commonwealth.”
that “due
(Id.; see Doc. 12 at 19.)
Petitioner stated
to trial and direct appellate counsel’s dereliction in
not investigating and/or presenting the Affidavit” he was denied
“his right to due process of law and ineffective assistance of
counsel.”
(Id. at 8.)
Petitioner submitted that, pursuant to
Gonzalez v. Crosby, 545 U.S. 524, 528 (2005), recent Supreme Court
cases presented “new evidence” for Rule 60 purposes which
supported district court review of his June 2000 habeas petition:
7
Trevino v. Thaler, 569 U.S. 413 (2013), and McQuiggin v. Perkins,
569 U.S. 383 (2013).
(Doc. 12 at 9.)
Petitioner referred to his
wife’s Affidavit, which is dated September 3, 1993, (see Doc. 12
at 19) as his “newly
discovered evidence affidavit” and asserted
that trial/appellate counsel “rendered ineffective assistance of
counsel for their failure” to present it.
(Doc. 12 at 10.)
Finally, Petitioner concluded that “relief from operation of
judgment is warranted” because he “demonstrated the miscarriage of
justice that transpired in his case, actual innocence to the
crimes charged absent the intent ingredient to have established a
charge of first degree murder which will be demonstrated in the
award of an evidentiary hearing.”
(Doc. 12 at 12.)
Finding Petitioner failed to demonstrate that exceptional
circumstances warranted an excusal for his lengthy delay in filing
the motion, Magistrate Judge Susan Schwab recommended that the
motion be denied in her March 7, 2014, Report and Recommendation.
(Doc. 15 at 8-11.)
She found that the Supreme Court decisions in
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thayler, 569
U.S. 413 (2013), were “clearly inapposite” and a Rule 60(b) motion
in the circumstances was improper under Gonzalez, 545 U.S. at 53334, because Petitioner’s motion was “nothing more than an attack
on the underlying criminal judgment, not some defect in the
integrity of this Court’s previous Order.”
(Doc. 15 at 12 (citing
Turner v. Dragovich, 163 F. App’x 97 (3d Cir. 2006)).)
8
Petitioner
objected to the Report and Recommendation on several grounds,
including that the Magistrate Judge did not address his “actual
innocence equitable tolling claim” which was based on McQuiggin.
(Doc. 16 at 6.)
The Court’s subsequent May 1, 2014, Memorandum included
extensive discussion of Petitioner’s claim that the Court should
find his motion timely filed and consider his actual innocence
claim pursuant to McQuiggin.
(Doc. 17 at 15-21.)
The Court
concluded that Petitioner had not adequately presented a gateway
claim of actual innocence and, therefore, his motion under Rule
60(b) was properly denied.
(Id. at 21. )
Over three years elapsed before Petitioner filed the motion
under consideration here on November 16, 2017.
(Doc. 19.)
On the
same date he filed Petitioner’s Motion for the Appointment of
Habeas Corpus Counsel under The Criminal Justice Act 18 U.S.C. §
3006(A).
(Doc. 20.)
II. Discussion
With his current filing, Petitioner asserts that he has been
diligently pursuing collateral, state, and federal remedies “to
gain redress of his substantial Constitutional violations which
resulted in the conviction and detention of a man who is actually
innocent of the crimes for which Petitioner was charged, arrested,
convicted and ultimately sentenced to a term of life
imprisonment.”
(Doc. 19 at 7.)
As noted above, Petitioner relies
9
on McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), and Satterfield
v. District Attorney of Philadelphia, 872 F.3d 152 (2017), to
support his assertion that his claims for ineffective assistance
of counsel should be reviewed on the merits based on his showing
of actual innocence. (Id. at 2, 8.)
In McQuiggin, the Supreme Court held that “actual innocence,
if proved, serves as a gateway through which a petitioner may pass
whether the impediment is a procedural bar, as it was in Schlup
and House, or, as in this case, expiration of the statute of
limitations [in the context of 28 U.S.C. § 2244(d)(1)(D)].”
McQuiggin, 569 U.S. at 386 (citing Schlup v. Delo, 513 U.S. 208
(1995); House v. Bell, 547 U.S. 518 (2006)).
The Court cautioned
that “tenable actual-innocence gateway pleas are rare: [A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’”
Id. (quoting Schlup, 513 U.S. at
538; citing House (emphasizing that the Schlup standard is
“demanding” and seldom met)).
Satterfield considered “whether the change in decisional law
borne by McQuiggin may properly serve as the basis of a Rule
60(b)(6) motion.”
872 F.3d at 160.
Explaining that Rule 60(b)(6)
provides litigants with a mechanism by which they may obtain
relief from a final judgment “‘under a limited set of
10
circumstances including fraud, mistake, and newly discovered
evidence,’” id. at 158 (quoting Gonzalez v. Crosby, 545 U.S. 524,
528 (2005), the Circuit Court specifically considered the
petitioner’s reliance on Rule 60(b)(6), “a catch-all provision
extending beyond the listed circumstances to ‘any other reason
that justifies relief,’” id. (quoting Fed. R. Civ. P. 60(b)(6)).
Satterfield added that
[d]espite the open-ended nature of the
provision, a district court may only grant
relief under Rule 60(b)(6) in “extraordinary
circumstances where, without such relief, an
extreme and unexpected hardship would occur.”
Cox, 757 F.3d at 120 . . . This is a
difficult standard to meet, and “[s]uch
circumstances will rarely occur in the habeas
context.” Gonzalez, 545 U.S. at 535.
872 F.3d at 158.
In general, “[p]recedent makes clear that changes in
decisional law ‘rarely’ constitute “extraordinary circumstances’
for purpose of Rule 60(b),” 872 F.3d at 160 (quoting Cox v. Horn,
(3d Cir. 2014)), but Supreme Court precedent “leaves open the
possibility that a change in law may–-when accompanied by
appropriate equitable circumstances–-support Rule 60(b)(6)
relief,” 872 F.3d at 161 (citing Gonzalez, 545 U.S. 524; Cox, 757
F.3d at 121-22).
Satterfield confirmed that McQuiggin was
properly characterized as effecting a change in decisional law.
Id. at 159.
Rather than impose a per se or bright-line rule, the
Circuit Court adhered to a “‘case-dependent analysis’ rooted in
11
equity,’” id., (quoting Cox, 757 F.3d at 124), which “manifests as
a ‘flexible, multifactor approach to Rule 60(b)(6) motions . . .
that takes into account all the particulars of a movant’s case,’
even where the proffered ground for relief is a post-judgment
change in the law,” id. (quoting Cox, 757 F.3d at 122).
In this context, the Circuit Court opted for more analysis of
the equitable circumstances at play in the petitioner’s case.
at 162.
Id.
Satterfield also instructed that “[w]henever a petitioner
bases a Rule 60(b)(6) motion on a change in decisional law, the
court should evaluate the nature of the change along with all of
the equitable circumstances and clearly articulate the reasoning
underlying its ultimate determination.”1
Id.
Noting that the
principles underlying McQuiggin “are fundamental to our system of
government and important to the inquiry on remand,” the Circuit
Court stated that
McQuiggin allows a petitioner who makes a
credible showing of actual innocence to
pursue his or her constitutional claims even
in spite of the AEDPA’s statute of
limitations by utilizing the fundamentalmiscarriage-of-justice exception–-an
exception “grounded in the ‘equitable
discretion’ of habeas courts to see that
federal constitutional errors do not result
in the incarceration of innocent persons.”
1
Satterfield noted that equitable factors which the district
court could consider include the severity of the underlying
constitutional violation and whether the petitioner raises a
colorable claim regarding the alleged constitutional violation.
872 F.3d at 163-64 (citing Buck, 137 S.Ct. at 777-79; McQuiggin,
133 S.Cr. at 1931; Schlup, 513 U.S. at 316-17).)
12
McQuiggin, 133 S. Ct. 1931. Underlying the
fundamental-miscarriage-of-justice exception
is a “[s]ensitivity to the injustices of
incarcerating an innocent individual,” and
the doctrine aims to “balance the societal
interests in finality, comity, and
conservation of scarce judicial resources
with the individual interest in justice that
arises in the extraordinary case.” Id. at
1032. For this reason, “‘[i]n appropriate
cases,’ the principles of comity and finality
that inform the concepts of cause and
prejudice ‘must yield to the imperative of
correcting a fundamentally unjust
incarceration.’” Murray v. Carrier, 477 U.S.
478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397
(1986) (quoting Engle v. Isaac, 456 U.S. 107,
135, 102 S. Ct. 1558, 71 L.Ed.2d 783 (1982))
(alteration in original).
Satterfield, 872 F.3d at 162.
The Circuit Court further noted
that it failed to see a set of circumstances where the change in
law brought about by McQuiggin and a petitioner’s adequate showing
of actual innocence would not be sufficient to support Rule
60(b)(6) relief, adding that two factors of the Rule 60(b)(6)
analysis recently identified by the Supreme Court–-“the risks of
injustice to the parties” and “the risk of undermining the
public’s confidence in the judicial process”–-would be implicated
if actual innocence were not considered in the extraordinary
circumstances context.
Id. at 163 (quoting Buck v. Davis, --
—U.S.—--, 137 S.Ct. 759, 778 (2017)).
Thus, assessing whether a
petitioner makes a credible showing of actual innocence is the
first step in district court’s analysis, i.e., it is the threshold
matter which determines whether McQuiggin’s holding would be
13
applicable.
Id.
Satterfield explains that making such a showing
is a “burdensome task that requires the petitioner to ‘persuade[ ]
the district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.’”
Id. (quoting McQuiggin, 133 S.Ct at 1935).
As indicated in the background summary set out above, this
Court reviewed Plaintiff’s “actual innocence” claim post-McQuiggin
and found it wanting in the May 1, 2014, Memorandum.
16-21, n.3.)
(Doc. 17 at
In that context, Petitioner pointed to Connie
Riley’s affidavit as the new evidence supporting his actual
innocence claim and the Court explained why he had not made a
sufficient showing to proceed.
(Id.)
In the filing at issue
here, Petitioner again relies on the same evidence in urging the
Court consider this an “extraordinary circumstance” which would
allow consideration of the merits of his underlying claims.
e.g., Doc. 19 at 13.)
(See,
With his current argument, Petitioner does
not seem to appreciate that, in the previous Memorandum, the Court
proceeded with the McQuiggin analysis in the Rule 60(b) context
and determined that Petitioner had not made the crucial showing of
actual innocence.
(Doc. 17 at Doc. 17 at 16-21 & n.3.)
In other
words, the Court assumed that Petitioner could potentially proceed
under Rule 60(b) if he made the requisite actual innocence showing
but denied his motion on the basis that he had not made the
required gateway showing which would allow him to do so.
14
(Id.)
The analysis included the assumption that the actual innocence
test applied to a case where a petitioner argued he was
responsible for a lesser degree of guilt.
(citations omitted).)
(Doc. 17 at 18 n.6
Importantly, with his current filing
Petitioner adds nothing to demonstrate how Connie Riley’s
affidavit shows actual innocence of first degree murder because of
voluntary intoxication.
While no basis for Rule 60(b)(6) relief is apparent in this
motion, in an abundance of caution the Court has again reviewed
the entire record to determine if Petitioner has made an adequate
showing of actual innocence in any filing.
Based on the
principles underlying McQuiggin and Satterfield, the Court has
taken a broad view of matters presented in all submissions and
again concludes that Petitioner has not made the requisite
credible showing of actual innocence.
As noted above, Plaintiff’s 2002 habeas filing contained
factual averments not contained in his 2000 filing, listing
evidence presented at trial about his intoxication and referencing
additional evidence which was not presented.
26, Civ. A. No. 3:02-CV-750.)
(Doc. 1 at 21-24,
Petitioner identified his wife’s
trial testimony regarding his intoxication and expert testimony on
the subject (for both prosecution and defense).
(Id.)
His
allegation that key witnesses were not called (id. at 21) is a
claim he made in another Rule 60(b)(6) motion in this case where
15
he asserted that a bartender and barmaid would have supported his
claim of diminished capacity and three others would have testified
about his character in normal circumstances (Doc. 10 at 3).
In no
instance does Petitioner show how the evidence not presented would
contradict or overwhelm trial evidence supporting the first degree
murder conviction to the extent that “‘no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.’”
Satterfield, 872 F.3d at 163 (quoting
McQuiggin, 133 S.Ct at 1935).
Nor does Petitioner address the
legal standard discussed in the Pennsylvania Superior Court’s
consideration of the issue of intoxication where the Superior
Court quoted the Trial Court’s Rule 1925 Opinion concerning the
admission of evidence which was deemed probative of the degree of
Petitioner’s intoxication.
(See Doc. 10 at 20-21.)
Diminished capacity is an extremely limited defense; it must
be established through expert testimony that the defendant was
unable to formulate the specific intent to kill.
See, e.g.,
Saranchak v. Beard, 616 F.3d 292, 308 (3d Cir. 2010) (citing
Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003)).
“The
defense will be successful ‘only if the evidence shows that the
defendant was ‘overwhelmed to the point of losing his faculties
and sensibilities.’”
Id. at 307 (quoting Commonwealth v.
Blakeney, 946 A.2d 645, 653 (Pa. 2008)).
While Petitioner does not discuss this legal standard, a
16
previous filing indicates that he may misapprehend the required
showing.
As set out in the background section above, Petitioner
stated in his November 2017 Rule 60(b) motion that “in order to
convict the petitioner with the requisite ‘intent’ he would have
to have his full faculties at the time of the charged crime.”
(Doc. 10 at 3 (emphasis added).)
The legal standard does not
require “full faculties,” and faculties and sensibilities may be
diminished due to intoxication without being “overwhelmed” as the
standard requires.
Saranchak, 616 F.3d at 307-08.
Here the jury
heard from Petitioner’s wife who was present before and after the
killing and from expert witnesses regarding intoxication.
As
previously discussed, Petitioner makes no attempt to show with
specificity that evidence not presented at trial would negate
evidence relied upon by the jury in the jury’s finding that
Petitioner was not overwhelmed to the point of losing his
faculties and sensibilities.
Petitioner’s general averments are
insufficient under McQuiggin, Satterfield, and all precedent
explaining the heavy burden of establishing actual innocence in
the fundamental miscarriage of justice context.
To show that no
jury would have convicted him of first degree murder because of
diminished capacity based on voluntary intoxication, Petitioner
must do far more than he has done here.
Because Petitioner makes
no more than conclusory statements regarding actual innocence, the
Court concludes he has not come close to satisfying the
“burdensome task” of persuading this Court that, “‘in light of the
17
new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.’”
Satterfield, 872
F.3d at 163 (quoting McQuiggin, 133 S.Ct at 1935).
III. Conclusion
For the reasons discussed above, Petitioner, James W.
Riley’s, Independent Action for Relief from Final Order, or
Alternatively, Motion for Relief from Final Order Pursuant to Fed.
R. Civ. Proc. 60(b) (Doc. 19) is DENIED.
Because Petitioner has
not come close to making the required threshold showing and the
Court denied the motion after a thorough and generous review of
the record in this case and similar habeas petition, the Court
finds no basis to appoint counsel.
Therefore, Petitioner’s Motion
for the Appointment of Habeas Corpus Counsel under The Criminal
Justice Act 18 U.S.C. § 3006(A) (Doc. 20) is DENIED.
An
appropriate Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 1, 2018
18
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