United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. DISTRICT JUDGE:
matter comes before the Court on Petitioner Markus
Harvell's Motion to Reconsider (d/e 33) (Motion). The
Motion is a motion to alter or amend judgment. Fed.R.Civ.P.
59(e). For the reasons stated below, the Motion is DENIED.
asks the Court to reconsider and alter or amend the Opinion
entered September 28, 2018 (d/e 31) (Opinion) and Judgment
entered October 2, 2018 (d/e 32). To prevail, Harvell must
demonstrate a manifest error of law or fact, or present newly
discovered evidence. Fed. R. Civ. P. 59(e); LB
Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263,
1267 (7th Cir. 1995). The Court has carefully
reviewed the parties= filings and the record and finds no
manifest error of law or fact in the Court's decision.
Harvell also has not presented any new evidence.
Court stated the facts in detail in the Opinion. See
Opinion, at 2-30. Briefly, on August 9, 2001, a man in a
wig referred to as “Wig-Man” walked toward a
group of people standing near the Brandon Court housing
complex in Springfield, Illinois. The group of people
included Petitioner Harvell. Wig-man and Harvell argued.
Wig-man pulled out a 9-millimeter pistol and started
shooting. At some point, Harvell pulled out a .22 caliber
revolver and also started shooting. A bystander, a young boy,
was shot and killed. The boy was shot with a .22 caliber
was tried for first-degree murder in a jury trial in Sangamon
County, Illinois, Circuit Court. The trial began on February
5, 2002. At the conclusion of the trial, the jury convicted
Harvell of first-degree murder. Harvell was sentenced to 50
years imprisonment. See Opinion, at 2-8.
October 3, 2013, Harvell filed this Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody (d/e 2) (Petition). On September 28, 2018, this Court
denied the Petition. Opinion, at 42.
states several grounds to alter or amend the judgment. None
have merit. Harvell argues that the Court failed to consider
his claims that he was denied ineffective assistance of
counsel at trial and on appeal because his attorneys did not
raise the insufficiency of the evidence or his actual
innocence in light of his proximate cause theory of
liability. Motion, at 1-6. Harvell raised these
matters in his Reply to Respondent's Supplemental Answer
(d/e 20). See Motion, at 2. A party may not raise
issues by reply. Issues not raised in the initial pleadings
are forfeited. See e.g., Narducci v. Moore,
572 F.3d 313, 324 (7th Cir. 2009).
the Court addressed these issues. Harvell argued two points
in several filings, including the Reply: (1) he was innocent
because he only returned fire to defend himself from Wig-
man; and (2) he was innocent because Wig-man was guilty of
felony murder. Harvell argues that Wig-man committed the
felony of shooting at Harvell, and Harvell only returned fire
to defend himself. The boy's death during the shooting
was Wig-man's responsibility, not Harvell's.
Court addressed both of these issues on the merits in the
Opinion. The Court explained that the evidence at trial was
conflicting regarding whether Harvell returned fire
immediately in self-defense, or whether Harvell ran from the
scene, secured a gun, and returned to the scene after a
couple of minutes “intent on revenge and
retribution.” Opinion, at 39. The jury
believed the latter. As a result, the jury determined that
Harvell was not shooting in self-defense. In addition,
Wig-man's possible culpability for felony murder for the
boy's death did not change Harvell's culpability for
firing the shot that killed the boy while seeking revenge on
Wig-man. Opinion, at 39-43. Harvell's attorneys,
therefore, did not fail to provide effective assistance by
deciding not to argue insufficiency of the evidence or actual
innocence either at trial or on appeal. Harvell fails to
present any error of law or fact.
next argues that the Court erred by stating that he failed to
present any new evidence. Harvell had to present new evidence
to support his claim of miscarriage of justice. See
Opinion, at 39-40. Harvell had submitted a redacted
Springfield Police Department written statement of an inmate
(Inmate) at the Sangamon County Jail dated October 18, 2001
(Inmate Statement). The Inmate made the statement to a
Springfield, Illinois Police Detective Graham. Motion for
Leave to Supplement New Evidence (25), attached
Inmate Statement. Except for Detective Graham, all
names were redacted from the Inmate Statement, including the
name of the Inmate. Harvell stated that he secured the Inmate
Statement post-trial though a Freedom of Information Act
request. Id., at 2. Harvell argues that the Court
erroneously stated in the Opinion that he did not submit any
new evidence to support his Petition, when he submitted the
Court's omission of a reference to the Inmate Statement
is not grounds for relief because the Court addressed the
merits of Harvell's supplemental claims of actual
innocence and a miscarriage of justice even though the Court
noted a lack of new evidence. Opinion, at ...