Moore v. Tegels

Filing 39

ORDER signed by Chief Judge Pamela Pepper on 3/26/2024 DENYING 36 petitioner's motion to alter or amend judgment. (cc: all counsel and mailed to Andreas Moore at Kenosha Correctional Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANDREAS L. MOORE, JR.,
Petitioner,
Case No. 22-cv-717-pp
v.
PETER J. JAEGER,
Respondent.
ORDER DENYING PETITIONER’S MOTION TO ALTER/AMEND JUDGMENT
(DKT. NO. 36)
On July 31, 2023, the court granted the respondent’s motion to dismiss
Andreas Moore, Jr.’s petition for a writ of habeas corpus under 28 U.S.C. §2254
and denied a certificate of appealability. Dkt. No. 34. The court found that the
petition was untimely: the petitioner’s conviction became final on December 10,
2016, id. at 9, and the petitioner filed his federal habeas petition on June 21,
2022. Although the petitioner had filed a Knight petition years after the
conviction became final, the court held that that filing did not pause the federal
habeas clock. Id. at 12, 13. The court concluded that the petitioner had failed
to establish that he was “diligently pursuing his rights” or that extraordinary
circumstances prevented him from timely filing the federal habeas petition by
December 2017. Id. at 15. The court also found that the petitioner had failed to
establish actual innocence, and was raising arguments that the state courts
previously had considered. Id. at 18.
I.

Petitioner’s Motion to Alter or Amendment Judgment under Rule
59(e) and Reconsideration Motion (Dkt. No. 36)
Twenty-eight days after the court entered judgment, the court received

from the petitioner a fourteen-page, single-spaced motion for reconsideration
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and attached ninety-four pages of exhibits. Dkt. No. 36. The first fourteen
pages of exhibits are the same fourteen pages the petitioner filed with his
original petition; he included additional pages with his amended petition. Dkt.
Nos. 8-1, 36-1. The petitioner admits that in the motion to alter or amend, he
is addressing “some but not all of the grounds in his original petition.” Dkt. No.
36 at 1. One argument that he did not raise previously is the state court’s
alleged failure to make a probable cause determination within forty-eight hours
of his warrantless arrest. Id. at 2-4. The remaining arguments are arguments
the petitioner raised in his petition and amended petition: that one of the
victims failed to testify, that someone else would have identified his codefendant as the shooter and that his co-defendant allegedly lied in violation of
his plea agreement. Id. at 5. The petitioner maintains that he can contradict
every statement made by “the prosecutor to sentence him unconstitutionally.”
Id. at 12.
The petitioner addresses the time that it took for him to bring his
arguments to the court’s attention. He claims that he raised “these questions to
his former counsel” but that counsel moved many times between 2017 and
2019. Id. at 6. He points to Exhibit 8 as evidence that he wrote to the
Wisconsin Innocence Project to try to get help during the relevant period; the
document labeled Exhibit 8, however, is a supplement to a Milwaukee Police
Department incident report. Dkt. No. 36-1 at 94. The petitioner asserts that he
“made every affirmative effort to fight this wrongful conviction” and suggests
that the fact that the evidence was not presented is proof that he did not
receive the procedural safeguards guaranteed by the Constitution. Id. Finally,
the petitioner argues that “the question of mootness turns on the question
presented by the merits.” Id. at 9.
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A motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight (28) days of the entry of judgment. A Rule 59(e) motion must show
either that the court “committed a manifest error of law or fact” or that “newly
discovered evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v.
Beyrer, 722 F.3d 939, 955 (7th Cir. 2013). A “manifest error of law” “is not
demonstrated by the disappointment of the losing party. It is the ‘wholesale
disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v.
Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997))
The petitioner has not shown that the court committed a manifest error
of law. The petitioner filed his federal habeas petition outside of the one-year
limitation period. See 28 U.S.C. §2244(d)(1). In its July 31, 2023 order, the
court considered whether the petitioner had established a basis for equitable
tolling or a finding of actual innocence. Dkt. No. 34 at 13-20 (citing Ademju v.
United States, 999 F.3d 474, 477 (7th Cir. 2021); Arnold v. Dittman, 901 F.3d
830, 836 (7th Cir. 2018)). Applying the relevant legal standard, the court
concluded that the petitioner had failed to diligently pursue his rights and had
failed to establish that some extraordinary circumstance prevented him from
filing or that he was actually innocent. Holland v. Florida, 560 U.S. 631, 648–
49 (2010). While it is difficult to tell from the his motion to alter or amend the
judgment, the petitioner does not appear to argue that the court committed a
manifest error of law.
Similarly, the petitioner has not shown that the court committed a
manifest error of fact. The court found that the conviction became final on
December 10, 2016. Dkt. No. 34 at 9. In March of 2019, the petitioner filed a
petition for a sentence reduction in the state court but that petition did not
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challenge his judgment of conviction. Id. at 14. He says that he is presenting
documents with the instant motion to alter or amend judgment that
demonstrate he requested assistance from the Innocence Project in 2017 and
that his lawyer changed addresses multiple times from 2017 to 2019. Dkt. No.
36. The court can find no such documents among the pages and pages of
exhibits the petitioner filed. As noted in the court’s order dismissing the case,
the petitioner received a letter dated April 2017 from the State Public
Defender’s Office urging him to contact his private attorney (and that same
letter provided an address). Dkt. No. 25-1 at 1. The court explained why the
letter did not establish that the petitioner was diligently pursuing his rights:
Finally, while Attorney Taylor Cornwall’s letter was dated April 28,
2017, the petitioner does not explain what happened between April
28, 2017 and March 22, 2019. He does not explain whether he
contacted his appointed counsel, does not explain whether that
counsel provided him with his case materials or when and does not
explain how any delay caused him to wait over four years to file his
federal habeas petition. The petitioner has not demonstrated that he
was diligent in pursuing his rights.
Dkt. No. 34 at 15. The motion to alter or amend judgment does not change that
analysis. Even if the petitioner wrote to his lawyer while his lawyer moved
locations, he has not explained why he waited until 2022 to file his federal
habeas petition.
Nor has the petitioner demonstrated that some extraordinary
circumstance prevented him from filing a timely habeas petition. An
extraordinary circumstance is one that prevents a petitioner from complying
with a deadline and it must be an external obstacle that impedes the
presentation of his claim to the court. Conner v. Reagle, 82 F.4th 542, 551 (7th
Cir. 2023). The only thing that the petitioner asserts was outside of his control
was the fact that his counsel moved offices between 2017 and 2019 and that
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he relied on family and friends for the relevant documents. Dkt. No. 36 at 1.
His allegations are conclusory and insufficient for purposes of finding an
extraordinary circumstance. And the petitioner is relying on the same
arguments the court considered—and rejected—for the actual innocence claim.
The petitioner had the burden to establish a basis for excusing the
untimely filing. See Menominee Indian Tribe of Wis. v. United States, 577 U.S.
250, 255 (2016). He cannot use his Rule 59(e) motion to raise arguments that
could have been raised in his original petition. Ben-Yisrayl v. Neal, 857 F.3d
745, 747 (7th Cir. 2017) (“A Rule 59(e) motion is not an appropriate vehicle for
advancing arguments or theories that could and should have been made before
the district court rendered a judgment.”). The petitioner did not attach evidence
or make an argument that was unknown to him at the time he filed the original
petition or even the amended petition.1 He even admits—on page six of the Rule

In discussing his claim that he did not have a probable cause hearing within
forty-eight hours of his arrest, the petitioner says, “Among the violations
presented before hand, [the petitioner] presents this motion, which he has
learned about a violation has occurred on Wisconsin ,it is common practice for
judicial officials to make there probable cause determination ,decide bail based
on papers(Discovery Reports) which shall include a stand form entitled
probable cause statement and judicial determination . . . probable cause
statement and judicial determination under 970.01 Wis. statutes sub(2) when a
person is arrested without a warrant and brought before a judge a complaint
shall be filed forthwith, this rule that a judicial determination or probable
cause must be made within 48hrs of a warrantless arrest applies to wisconsin .
. . .” Dkt. No. 36 at 2. It is not clear, but perhaps the petitioner is asserting that
he only recently learned of the forty-eight-hour requirement. The fact that the
petitioner only recently learned of a legal theory does not qualify as “newly
discovered evidence” justifying the grant of a motion to alter or amend the
judgment. “To support a motion for reconsideration based on newly discovered
evidence, the moving party must ‘show not only that this evidence was newly
discovered or unknown to it until after the hearing, but also that it could not
with reasonable diligence have discovered and produced such evidence [during
the pendency of the motion].’” Caisse Nationale de Credit Agricole v. CBI
Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (quoting Engelhard Indus.,
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59(e) motion—that he brought “these questions to his former counsel.” Dkt. No.
36 at 6. His motion to alter or amend judgment doesn’t excuse the delay in
bringing his claims to federal court and he still hasn’t shown that it is “more
likely than not that no reasonable juror would have found him guilty beyond a
reasonable doubt.” See Dkt. No. 34 at 17 (citing McQuiggin v. Perkins, 569 U.S.
383, 386 (2013)).
II.

Conclusion
The court DENIES the petitioner’s motion to alter or amend judgment

under Rule 59(e) and reconsideration motion. Dkt. No. 36.
Dated in Milwaukee, Wisconsin this 26th day of March, 2024.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

Inc. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir. 1963), cert
den., 377 U.S. 923 (1964)). The petitioner has not made this showing.
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