IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

v. : No. 4:CR-96-239

:

DAVID PAUL HAMMER : (Judge Muir)

 ORDER

 January 31, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On December 27, 2005, we issued a 278-page opinion with 1705

specific findings of fact and order granting in part and denying in

part David Paul Hammer’s fourth amended § 2255 motion. The order

vacated and set aside the sentence of death imposed on Mr. Hammer

on November 4, 1998, and authorized the Government within 60 days

to file a motion to have the case placed on a trial list for a new

penalty-phase trial. On January 11, 2006, the Government filed a

motion for reconsideration pursuant to Rule 59(e) of the Federal

Rules of Civil Procedure in which it requests that we review our

order of December 27, 2005, and “amend it by denying altogether

Hammer’s § 2255 motion.” On January 12, 2006, the Government filed

a brief in support of the motion. Mr. Hammer filed a brief in

opposition on January 26, 2006. The Government’s motion became

ripe for disposition on or about January 30, 2006, when the

Government notified the Deputy Clerk that it did not intend to file

a reply brief.

Before addressing the merits of the Government’s arguments,

we will review the legal principles governing motions for

reconsideration, beginning with the well-settled doctrine of "law

of the case." It is important to note the manner in which a

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court's reconsideration of a prior decision meshes with that

doctrine. The "law of the case" doctrine "directs [a federal

court's] exercise of its discretion." Public Interest Research

Group of New Jersey, Inc., et al. v. Magnesium Elektron, Inc., 123

F.3d 111, 113 (3d Cir. 1997). When the United States Supreme Court

considered how a motion for reconsideration affects the scope and

nature of that discretion, it commented that

[a] court has the power to revisit prior decisions of

its own or of a coordinate court in any circumstance,

although as a rule courts should be loathe to do so

in the absence of extraordinary circumstances such as

where the initial decision was "clearly erroneous and

would work a manifest injustice."

Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817

(1988)(emphasis added).

The Supreme Court's guidance in Christianson is reflected in

the repeated holding of the Court of Appeals for the Third Circuit

that 

we have recognized that the doctrine [of the law of

the case] does not preclude our reconsideration

of previously decided issues in extraordinary

circumstances such as where: (1) new evidence is

available; (2) a supervening new law has been

announced; or (3) the earlier decision was 

clearly erroneous and would create manifest

injustice. 

In re City of Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir.

1998)(emphasis added); see also Public Interest Research Group of

New Jersey, Inc., 123 F.3d at 117-118. A demonstration of

extraordinary circumstances as outlined above is a threshold

prerequisite for obtaining reconsideration of a court's prior

decision.

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There is also an abundance of case law describing the events

and conditions that do not constitute extraordinary circumstances

justifying a court's reconsideration of a prior decision. "A

motion for reconsideration is not properly grounded on a request

that a court should rethink a decision it has already made." 

Armstrong v. Reisman, No. 99-CV-4188, 2000 WL 288243, *2 (E.D.Pa.

March 7, 2000)(Brody, J.). Moreover, "where evidence is not newly

discovered, a party may not submit that evidence in support of a

motion for reconsideration." D'Angio v. Borough of Nescopeck, 56

F.Supp.2d 502, 504 (M.D.Pa. 1999)(McClure, J.)(citing Harsco Corp.

v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476

U.S. 1171 (1986)); see also Delong Corp. v. Raymond Int'l Inc., 622

F.2d 1135, 1139-40 (3d Cir. 1980).

As the cited cases demonstrate, a motion for reconsideration

is a device of limited utility. Its fundamental purpose is to

remedy manifest errors of law or fact or to present newly

discovered precedent or evidence which, if discovered previously,

might have affected the court's decision. Harsco, supra. A party

seeking to establish that the court has made such a manifest error

is required "to persuade us not only that our prior decision was

wrong, but that it was clearly wrong and that adherence to that

decision would create manifest injustice." In re City of

Philadelphia Litigation, 158 F.3d 711, 718 (3d Cir. 1998). We will

apply those concepts to the Government’s pending motion for

reconsideration.

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Mr. Hammer in his brief in opposition points out that the

Government’s motion with one exception is a “rehash” of arguments

already considered by the court. We agree with Mr. Hammer’s

position.

The one exception relates to the recent decision of the

United States Supreme Court in Brown v. Sanders, 126 S.Ct. 884 

(Jan. 11, 2006). In Brown, the Supreme Court held that “[a]n

invalidated sentencing factor (whether an eligibility factor or

not) will render the sentence unconstitutional by reason of its

adding an improper element to the aggravation scale in the weighing

process unless one of the other sentencing factors enables the

sentencer to give aggravating weight to the same facts and

circumstances.” Id. at 892. 

The Government’s reliance on Brown is unavailing for

several reasons. Brown did not involve a death sentence imposed

under the Federal Death Penalty Act of 1994. Instead, it involved

a death sentence imposed under the statutory scheme enacted by the

California legislature. Under the California statute there are

enumerated aggravating factors, e.g., “the murder was especially,

heinous, atrocious, or cruel,” and a statutory “catch-all”

aggravating factor which allowed the jury to consider “[t]he

circumstances of the crime of which the defendant was convicted in

the present proceeding.” 

Our case is clearly different. As noted in the introduction

to our opinion of December 27, 2005, there were only two statutory

aggravating factors which the jury was permitted to consider. 

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Those factors were (1) whether or not Mr. Hammer had previously

been convicted of two or more state or federal offenses punishable

by a term of imprisonment for more than one year, involving the use

or attempted or threatened use of a firearm and (2) whether or not

Mr. Hammer committed the murder of Andrew Marti after substantial

planning and premeditation.

Under Brown if one statutory aggravating factor is rendered

invalid for some reason, a death sentence may be upheld if the

evidence of that invalid statutory aggravating factor could have

been considered under another statutory aggravating factor which

was found by the jury to exist. In Mr. Hammer’s case we are not

dealing with such a situation. The problem is the failure of the

Government to disclose evidence which if presented to the jury by

Mr. Hammer may have persuaded the jury to conclude that the

aggravating factor had not been proven by the Government beyond a

reasonable doubt. 

The information the Government failed to disclose may have

convinced the jury that Mr. Hammer did not engage in substantial

planning and premeditation. In the event the jury did not conclude

beyond a reasonable doubt that Mr. Hammer engaged in substantial

planning and premeditation, the jury would not have considered the

evidence of substantial planning and premeditation with respect to

any other aggravating factor. Evidence relating to substantial

planning and premeditation would not have been relevant to the

jury’s consideration of the statutory aggravating factor of Mr.

Hammer having been convicted of two or more state or federal

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1. The California statutory scheme does not allow the jury to

consider non-statutory aggravating factors. In Brown the Supreme

Court concluded that the evidence relating to the statutory

aggravating factors found to be invalid could have been

considered by the jury under a statutory aggravating factor, that

is the “circumstances of the crime of which the defendant was

convicted in the present proceeding.” We will note that we will

give further consideration prior to or at the time of the 

retrial to arguments by counsel for both parties as to our

previous decision which allowed the use of the non-statutory

aggravating factor of future dangerousness. 

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offenses involving the use or attempted or threatened use of a

firearm. 

To the extent that evidence relating to substantial planning

and premeditation would have been relevant with respect to the nonstatutory aggravating factor of future dangerousness, the

Government did not in its notice of intent to seek the death

penalty reference its intention to rely on such evidence to support

that non-statutory aggravating factor and therefore such use would

not have been permissible.1 Moreover, as noted, the Brown decision

dealt with statutory aggravating factors. Because Brown dealt with

statutory aggravating factors under state law, that case is

inapposite. Also, if the jury rejected the substantial planning

and premeditation aggravating factor, it could not have considered

evidence of such planning and premeditation by reference to any

other aggravating factor. 

The Government has also reargued its position that the nonretroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989)

prohibits us from considering Mr. Hammer’s Brady claims. There is

no Teague issue presented in this case because we have not

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enunciated a new rule of law. Rather, we have applied the specific

facts of this case to the long standing Brady doctrine.

The Government does not raise or set forth any arguments in

its motion for reconsideration that call into question the merits

of our opinion and order of December 27, 2005. That opinion and

order is not troubled by manifest errors of law or fact and

Government has not presented anything new, which if previously

presented, might have affected our decision. Consequently, the

motion for reconsideration will be denied. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

The Government’s motion for reconsideration (Doc. 1224)

filed on January 11, 2006, is denied.

 

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:gs

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