The opinion of the court was delivered by: JAMES B. MORAN
Petitioner Robert Felder (Felder) filed this action for habeas corpus under 28 U.S.C. 2254, seeking relief from his state conviction for murder. Felder alleges that he received ineffective assistance of counsel, in violation of the Sixth Amendment, and that the evidence submitted at his trial was insufficient to support a finding of guilt beyond a reasonable doubt, in violation of the Fourteenth Amendment.
On May 19, 1995, we denied Felder's petition in part, ruling that the sufficiency of the evidence claim was without merit. However, that same order granted Felder an evidentiary hearing to determine whether his counsel's failure to call two potentially exculpatory witnesses constituted ineffective assistance of counsel. Before us now is the state's motion under Rule 60 seeking reconsideration of our May 19, 1995 order. For the reasons set forth below, the motion is denied.
The state asks us to reconsider, claiming earlier mistakes of law and fact. The Seventh Circuit has held that "'relief from a judgment under 60(b) is an extraordinary remedy and is granted only in exceptional circumstances.'" Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 400 (7th Cir. 1986) (quoting United States v. Zima, 766 F.2d 1153, 1157 (7th Cir. 1985)). The remedy is limited to situations in which "the Court has patently misunderstood the party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). The rule permits us only to "'correct manifest errors of law or fact.'" Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987), modified on other grounds, 835 F.2d 710 (quoting Keene Corp. v. Int'l Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1976), aff'd, 736 F.2d 388 (7th Cir. 1984)); see also Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988) ("[our] opinions are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure"). Thus, we will "not entertain a motion for reconsideration that merely reiterates arguments previously raised." Finally, it is well established that motions for reconsideration "cannot be used to raise legal arguments or present evidence that could have been adduced during the pendency of the original action." Asllani v. Board of Education of City of Chicago, 845 F. Supp. 1209, 1226 (N.D.Ill. 1994); see also Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985) ("Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.") (emphasis removed) (quoting Keene Corp. v. International Fidelity Insurance Co., 561 F. Supp. 656, 666 (N.D.Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)).
The state correctly notes that a habeas petitioner's failure to develop the factual background of a constitutional claim in the state court prevents him from receiving habeas relief on that claim. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 1720, 118 L. Ed. 2d 318 (1992). The state argues that Felder failed to develop the factual background of his ineffective assistance claim in the state court because he failed to make a sufficiently precise showing of the content of Golden and Reed's testimony. Whether or not that is true, the state failed to present that argument in its original response to Felder's petition.
A motion for reconsideration is not the place to advance new theories that could have been advanced earlier. Asllani, 845 F. Supp. at 1226. Since the state could have presented this argument in its original response, but failed to do so, it cannot do so on this motion for reconsideration.
The state's second argument is that Felder could not prevail on the merits of his claim regardless of what is established at an evidentiary hearing; that given the compelling evidence or his guilt, Felder could not establish that his counsel's errors likely affected the outcome of his trial. We disagree. First, we already considered and rejected the state's arguments on the merits in our earlier memorandum and order. The state obviously disagrees with our holding, but it is clear our holding did not result from a manifest error of law or fact and therefore it is not open for challenge on this motion for reconsideration.
See Bank of Waunakee, 906 F.2d at 1191. In any event, we disagree with the state that an evidentiary hearing would be fruitless. If the hearing reveals that Golden and Reed witnessed the murder and would have testified that Felder had nothing to do with the crime, and the only reason why they were not called was because of counsel's unprofessional error, Felder may be entitled to habeas relief despite the evidence the state presented tending to establish his guilt. Felder may be able to establish that the outcome of his trial would have likely been different and that the proceeding was fundamentally unfair. See Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 842 (1993). That determination of course is premature. So is, for that matter, an evidentiary hearing, because the state seeks to proceed, initially at least, pursuant to Rule 7. That it should do, including the submission of any affidavits, by September 13, 1995. The petitioner should file any response to that submission, including any affidavits from himself or others, by October 13, 1995.
Senior Judge, U.S. District Court