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Harvell v. Miles

United States District Court, C.D. Illinois, Springfield Division

August 5, 2019

SHERWIN MILES, Acting Warden, [1]Stateville Correctional Center, Respondent.



         This 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.


         Harvell 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.


         The 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 bullet.

         Harvell 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.

         On 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.

         III. ANALYSIS

         Harvell 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).

         Regardless, 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.

         The 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.

         Harvell 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 Inmate Statement.

         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 ...

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