JACKSONVILLE, ONSLOW COUNTY -

Cesar Laurean, a former Camp Lejeune Marine convicted of murder in 2010, isn't giving up in the battle of the courts.

"What he's asking for is a new trial, that he wants to go back and have this case retried," said District Attorney Ernie Lee.

Lee has asked a judge to deny that request. Laurean was convicted for the murder of Lance Cpl. Maria Lauterbach in December 2007.

The victim was eight months pregnant, saying Laurean raped her and that the baby was his. Court records show defense argued DNA testing revealed Laurean wasn't the father.

Laurean was convicted of beating the victim in the head in his garage. Investigators later found Lauterbach and her fetus burned in a fire pit in Laurean's backyard. He was arrested after fleeing to Mexico, and was extradited back to the states with the condition of prosecutors only pursuing a non-capital case.

After being in prison for several years, Laurean now argues his trial wasn't fair because he wasn't offered a second-degree murder plea.

"Second-degree murder was not offered to the jury as a possible verdict," Lee said. "However, the case law at the time was clear, that it was a first-degree murder case or nothing."

NewsChannel 12 obtained the motion that Laurean filed. He says his attorney, Dick McNeil, made the mistake of encouraging him not to testify.

"In hindsight, if I had to do it over again knowing that the judge made that mistake that I believe he made, I would have had him testify," McNeil said.

Laurean says he would have presented himself as a "stellar young Marine, polite, well-spoken, amiable and sympathetic." He argues that would have been enough evidence for jurors to have the option of convicting him of second-degree murder, where there's malice, but no premeditation.

"Here's this woman who's making these false claims arrives at your doorstep, that probably would cause a certain amount of passion to arise," McNeil said. "Something bad happened in the house, and again, the weapon that was allegedly used is not a weapon of choice, which again is what I argue."

Now, it's up to a judge to decide to either dismiss Laurean's motion or have a hearing to grant a new trial.