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UNITED STATES EX REL. EMERSON v. GRAMLEY

July 21, 1995

UNITED STATES ex rel. DENNIS EMERSON, Petitioner,
v.
RICHARD GRAMLEY, WARDEN, PONTIAC CORRECTIONAL CENTER, Respondent.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, District Judge:

 Petitioner Dennis Emerson raises four arguments in support of his motion to alter or amend our prior opinion of March 30, 1995, wherein we granted in part and denied in part his petition for a writ of habeas corpus. First, he contends that we incorrectly found several of his claims to be procedurally defaulted. Second, Emerson disagrees with our conclusion that Sammons's preparation for trial did not constitute deficient performance under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Third, petitioner argues that he should have received an evidentiary hearing. Fourth, he asserts that trial counsel's closing argument should be considered deficient under Strickland. For the reasons set forth below, petitioner's motion is denied. *fn1"

 Emerson moves under Fed. R. Civ. P. 59(e) to alter or amend our prior opinion, which was entered on April 3, 1995. The instant motion was served on April 14, 1995, and thus falls within the ten day window set out by Rule 59(e). Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166 (7th Cir. 1995). A motion brought under Rule 59(e) may raise "newly discovered evidence or a manifest error of law or fact" as grounds for altering or amending a prior judgment. Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). However, "this court will not entertain a motion for reconsideration that merely reiterates arguments previously raised." United States ex rel. Lynch v. Sandahl, 793 F. Supp. 787, 796 (N.D. Ill. 1992); see also Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988) ("This Court's opinions are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.").

 II. Discussion

 A. Procedural Default

 In our prior opinion we found that Emerson had defaulted four of his claims of ineffective assistance of trial counsel because he either failed to raise them on direct appeal, or failed to present them in his post-conviction petition before the Illinois state courts. 883 F. Supp. at 233-34. Emerson contends that we incorrectly found default with regard to three of these issues: (1) his trial counsel's failure to make an opening statement, (2) counsel's his failure to effectively cross-examine the state's main witness, Robert Ray, about bias and motive to lie, and (3) counsel's failure to call Emerson to testify. Emerson does not contend that these issues were actually raised on direct appeal. Rather, he argues that the Illinois courts did not find them defaulted, or that they could not have found them defaulted, and therefore we should have considered their merits.

 We first address petitioner's contention that the Illinois Supreme Court did not find these claims procedurally barred on the appeal of his post-conviction petition. See People v. Emerson, 153 Ill. 2d 100, 606 N.E.2d 1123, 1125-26, 180 Ill. Dec. 46 (Ill. 1992). Emerson argues that the Illinois Supreme Court relied solely on the doctrine of res judicata in dismissing his post-conviction petition, and not on the doctrine of waiver. We disagree. In its opinion, the Illinois Supreme Court articulated the standard for determining when issues are precluded from review in a post-conviction petition:

 
Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived.

 606 N.E.2d at 1125 (quoting People v. Ruiz, 132 Ill. 2d 1, 547 N.E.2d 170, 173, 138 Ill. Dec. 201 (Ill. 1989), cert. denied, 496 U.S. 931, 110 S. Ct. 2632, 110 L. Ed. 2d 652 (1990)). Although the lower court held that all of petitioner's claims had previously been raised and rejected, Emerson contended before the Illinois Supreme Court that he was raising additional claims, distinguishable from those raised on direct appeal. 606 N.E.2d at 1126. In rejecting his appeal, the court stated:

 
While his ineffectiveness claim does vary, it does so only in that it points out a few additional factors supporting his claim which could have been raised on direct appeal, and he has simply changed the phraseology of some other arguments, which were raised on direct appeal. . . . Because this court previously addressed defendant's claim of ineffective assistance of counsel on direct review of his case, the subsequent addition of different allegations of incompetence does not allow the relitigation of this issue on defendant's petition for post-conviction relief.

 Id. (emphasis added). The court concluded "that all of the issues raised by defendant in his petition were previously raised during his direct appeal, or, alternatively, could have been raised. . . . Because we find that the defendant did not present any claim which was not barred by the doctrine of res judicata or waiver, we hold that the trial court's decision was not erroneous." 606 N.E.2d at 1127 (citation omitted). Clearly, the state court refused to address the merits of the claims that Emerson raised for the first time in his post-conviction petition because of a procedural bar. Emerson's argument to the contrary is completely at odds with the language and reasoning of the Illinois Supreme Court's opinion.

 Emerson next argues that, even if the state court found these claims defaulted, such a ruling was contrary to state law with regard to two of his claims of ineffectiveness: Sammons's failure to conduct an effective cross-examination of Ray, and his refusal to call Emerson to testify on his own behalf. Petitioner argues that these claims could not have been brought on direct review because (1) they involve trial counsel's omissions and (2) they require an investigation of facts outside the record. Thus, Emerson contends, ...


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