Marshall v. Dunn
Filing
74
MEMORANDUM OPINION AND ORDER DENYING 68 MOTION for Reconsideration and DENIES a certificate of appealability with regard to all claims as set out herein. Signed by Judge Abdul K Kallon on 08/13/2021. (AKD)
FILED
2021 Aug-13 AM 11:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM BRUCE MARSHALL,
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Petitioner,
vs.
JEFFERSON S. DUNN,
COMMISSIONER, Alabama
Department of Corrections
Civil Action Number
2:15-cv-1694-AKK
Respondent.
MEMORANDUM OPINION AND ORDER
This court denied in part William Bruce Marshall’s petition for writ of habeas
corpus under 28 U.S.C. § 2254. Marshall has moved to reconsider, alter, or amend
portions of that judgment pursuant to Federal Rule of Civil Procedure 59(e). Doc. 68.
Marshall contends that this court committed manifest error and abused its discretion
in dismissing some of his claims.1 Id. at 1-2, 20, 22, 26, 30-31. He also claims an
intervening change in controlling law warrants reconsideration of Claim D. Id. at 27.
Finally, Marshall asks for reconsideration of the denial of a certificate of
appealability. Id. at 2. After careful consideration, the motion is due to be denied.
1
Specifically, Claim A—an ineffective assistance of counsel claim, Claim B—a juror
misconduct claim, Claim C—an Eighth Amendment claim based on the lethal injection protocol,
Claim D—a Sixth Amendment claim, Claim E—another Eighth Amendment claim based on the
death sentence, and Claim F—a Brady violation claim.
1
I.
“Rule [59(e)] gives a district court the chance ‘to rectify its own mistakes in the
period immediately following’ its decision.” Banister v. Davis, __ U.S. __, 140 S. Ct.
1698, 1703 (2020) (quoting White v. N.H. Dept. of Emp. Sec., 455 U.S. 445, 450
(1982)). 2 “A Rule 59(e) motion cannot be used ‘to relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of
judgment.’” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (alterations
omitted) (quoting Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763
(11th Cir. 2005)). The Eleventh Circuit has only recognized two “grounds for
granting [a Rule 59] motion . . . newly-discovered evidence or manifest errors of law
or fact.” Arthur, 500 F.3d at 1343 (internal quotation marks omitted) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999)); see also PBT Real Estate, LLC v.
Town of Palm Beach, 988 F.3d 1274, 1287-88 (11th Cir. 2021). But, the Supreme
Court has acknowledged that “courts may consider new arguments based on an
‘intervening change in’ in controlling law . . . .” Banister, 140 S. Ct. at 1703 n. 2.
See also Banister, 140 S. Ct. at 1710 (“[A] Rule 59(e) motion is a one-time effort to bring
alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal.”).
2
2
A.
Marshall’s motion “is not based on newly-discovered evidence[,]” Barber v.
Dunn, No. 5:16-CV-00473-RDP, 2019 WL 1979433, at *1 (N.D. Ala. May 3, 2019),
or an “intervening change in controlling law[,]” Banister, 140 S. Ct. at 1703 n. 2; doc.
68 at 2-3, 25. Therefore, “the only [grounds] for granting it would be a manifest error
of law or fact.” Barber, 2019 WL 1979433, at *1. “A ‘manifest error’ is not just any
error but one ‘that is plain and indisputable, and that amounts to a complete disregard
of the controlling law or the credible evidence in the record.’” Id. (quoting Error,
Black’s Law Dictionary (10th ed. 2014)).
Manifest error does not mean that one does not like the outcome of a
case, or that one believes the court did not properly weigh the evidence.
See Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.1993) (noting
that “mere disagreement does not support a Rule 59(e) motion”). . . .
[Petitioner] has offered nothing even to suggest any error of this
magnitude; he simply believes this court got it wrong the first time.
Daughtry v. Army Fleet Support, LLC, No. 1:11CV153-MHT, 2014 WL 466100, at
*2 (M.D. Ala. Feb. 5, 2014). An “intervening change in controlling law” that
“dictates a different result” must have occurred after the parties have concluded their
briefing. Pouyeh v. Univ. of Ala./Dep’t of Ophthalmology, 66 F. Supp. 3d 1375, 137879 (N.D. Ala. 2014).
3
B.
To determine if reconsideration is warranted, an overview of the standard of
review applied in the first instance is necessary. As conditions precedent to federal
review, the claim must be exhausted and not procedurally defaulted. Medellin v.
Dretke, 544 U.S. 660, 666 (2005); Woodford v. Ngo, 548 U.S. 91, 92-93 (2006). So,
prior to this court’s initial review, Marshall must have presented and exhausted his
claim in the state court, 28 U.S.C. § 2254(b)(1), and adhered to the required state
court procedures in doing so, see Woodford, 548 U.S. at 92-93. If the claim is
exhausted and not procedurally defaulted, the court must apply 28 U.S.C. § 2254(d)
to determine if relief is warranted. Relevant here under § 2254(d)(1), a court may not
grant habeas relief if “fairminded jurists could disagree” regarding the state court’s
decision. Id.; Harrington v. Richter, 562 U.S. 86, 101-02 (2011). This requires the
habeas petitioner to show that the state court’s decision was “objectively
unreasonable.” Barber, 2019 WL 1979433, at *1; Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003). So, “to succeed on his Rule 59(e) motion, [Marshall] must show that
this court completely disregarded controlling law or credible evidence in concluding
that the state court’s adjudication of [Marshall’s] claims did not transgress § 2254’s
highly deferential standard of review.” Barber, 2019 WL 1979433, at *1.
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II.
In his motion for reconsideration, Marshall contends that the court erred in
denying (1) his ineffective assistance of counsel claims with regard to trial counsel’s
failure to hire a forensic expert and failure to investigate Marshall’s lease—Claim A,
doc. 68 at 3-12; (2) his juror misconduct claim—Claim B, id. at 12-20; (3) his claim
challenging the lethal injection protocol—Claim C, id. at 22-26; (4) his challenge to
the state’s imposition of the death sentence without a unanimous jury—Claim D, id.
at 26-30; (5) his claim that the death sentence violates the Eighth Amendment—
Claim E, id. at 30-31; and (6) his Brady violation claim—Claim F. Finally, Marshall
seeks reconsideration of the denial of a certificate of appealability. Id. at 31-32. The
court addresses each argument in turn.
A.
Marshall’s first issue related to the alleged ineffective assistance of his trial
counsel is based on counsel’s failure to hire a rebuttal forensic expert. Doc. 68 at 37. The State court held that trial counsel made a strategic choice that satisfied
Strickland.3 Marshall v. State, 182 So. 3d 573, 583-586 (Ala. Crim. App. 2014). This
3
When Marshall originally raised this claim in state court, he was charged with showing trial
counsel’s actions were ineffective under the well-established Strickland v. Washington, 466 U.S.
668 (1984) standard. Under Strickland, the petitioner “must show that counsel’s performance was
deficient[,]” and that “the deficient performance prejudiced the defense.” Id. at 687.
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court found the State court’s holding reasonable. Doc. 60 at 81-83. Marshall disagrees
and argues the court erred by holding “a reasonable jurist could have found that trial
counsel could follow a strategy that did not require the use of forensic experts.” Doc.
68 at 3. Allegedly, counsel’s decision was not strategic or reasonable because
foregoing hiring a forensic rebuttal witness meant “the state was able to offer
uncontroverted evidence of Mr. Marshall’s allegedly sexually assaulting A.B.” Doc.
68 at 4. Further, Marshall argues the court did not give proper weight to trial counsel’s
statement that he “may have just missed” hiring a forensic rebuttal witness. Doc. 68
at 4.
Marshall’s contentions fail to show an error of Rule 59(e)’s demanding measure.4
In fact, Marshall cites no cases that suggest this court erred, much less manifestly so.
Doc. 68 at 3-7. Marshall’s arguments primarily boil down to a disagreement over the
weight the court gave to certain evidence. However, arguments that “the court did
not properly weigh the evidence” do not rise to the level of a manifest error for
reconsideration. Daughtry, 2014 WL 466100 at 2. Similarly, Marshall’s other
arguments, which are premised on his belief that the “court got it wrong the first
time[,]” are also insufficient to meet the high bar for reconsideration. Id.
Because Marshall’s arguments for reconsideration of the deficiency prong analysis fail, the
court declines to address Marshall’s argument that his trial counsel’s deficiency prejudiced him.
Doc. 68 at 5.
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Marshall’s second contention of error related to his ineffective assistance claim is
based on trial counsel’s failure to produce the lease agreement or to challenge the
alleged unlawful entry into his apartment unit. Doc. 68 at 7. Basically, Marshall
alleges that law enforcement violated the Fourth Amendment by entering his home
with only the consent of his ex-wife who was no longer a signatory to the lease. Doc.
7 at 37-38.5 The State court found that Marshall could not show prejudice because
Marshall “did not produce the alleged lease purporting to remove [his ex-wife] as
tenant of the property—or any other evidence demonstrating that Tonya was no
longer a tenant on the lease[.]” Marshall, 182 So. 3d at 587-77. The state court found
also that there were “sufficient intervening circumstances that would have broken the
causal connection between the allegedly illegal arrest and Marshall’s confession[.]”
Marshall v. State, 992 So. 2d 762, 769-70 (Ala. Crim. App. 2007).
When reviewing Marshall’s petition, this court found that reasonable jurists could
differ on whether the search violated the Fourth Amendment and whether the
resulting confession would be suppressed. Doc. 60 at 88, 90. As Marshall sees it, the
court’s holding was “based on manifest errors of law and fact and has resulted in
5
To prove an ineffective assistance claim based on a failure to assert a Fourth Amendment
violation, the petitioner must first show that counsel’s actions were deficient. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986). Next, he must show prejudice, which in this context requires
establishing that the Fourth Amendment claim is meritorious and that “there is a reasonable
probability that the verdict would have been different absent the excludable evidence . . . .” Id.
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manifest injustice.” Doc. 68 at 7. To support this contention, Marshall essentially
notes his disagreement with this court’s conclusions. See doc. 68 at 7-12. However,
“mere disagreement does not support a Rule 59(e) motion.” Daughtry, 2014 WL
466100 at 2 (internal quotations omitted).
B.
Marshall asks the court to reconsider the denial of his juror misconduct claim. See
doc. 68 at 15, 12-20. The motion relies, however, on facts and arguments Marshall
outlined in his petition and which the court has already considered. See docs. 7 at 4245, 51; 68 at 13-17, 19. Therefore, because Marshall is improperly “seeking to
relitigate issues that the court has already decided[,]” Daughtry, 2014 WL 466100, at
*2, reconsideration is not warranted.
C.
Marshall seeks reconsideration of his claim that Alabama’s lethal injection
protocol “creates a demonstrated risk of severe pain [that is] constitutionally
unacceptable [and] excessive and substantial when compared to known and available
alternative methods of execution.” Doc. 7 at 50-51. Marshall first raised this objection
in his 2014 petition for certiorari. Doc. 60 at 101; 17 at 49. In support of his petition
in this court, Marshall argued this claim was not defaulted procedurally because the
protocol changed in September of 2014 and the claim “did not accrue until after [his]
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Rule 32 hearing and the proceedings in the Court of Criminal Appeals.” Doc. 17 at
49. The court denied Marshall’s claim reasoning that he did not cite to a procedural
default exception. Doc. 60 at 102. The court also held that a habeas proceeding was
the incorrect forum to raise this challenge. Id.
In his motion for reconsideration, Marshall alleges a specific exception to the
procedural default rule applies. Doc. 68 at 22-26. As stated earlier, “[a] Rule 59(e)
motion cannot be used to ‘relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment.’” Arthur, 500 F.3d at 1343.
Marshall had the opportunity to outline any procedural default exceptions in the first
instance and failed to do so. He may not use a motion for reconsideration to do so
now. The motion also fails because Marshall never addressed the court’s secondary
holding that this habeas proceeding is the incorrect mechanism for his challenge.
D.
Marshall seeks reconsideration of his Sixth Amendment claim that is premised on
his contention that his death sentence resulted from a non-unanimous jury verdict.
Doc. 7 at 52-53. The State court found no constitutional violation and that “Marshall
could have, but did not, challenge the constitutionality of ‘Alabama’s capital
sentencing scheme’ on [direct] appeal.” Marshall, 182 So. 3d at 622. This court found
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both of these findings reasonable, and that Marshall had procedurally defaulted the
claim as a result. Doc. 60 at 104, 108-09.
In his motion to reconsider, Marshall contends this claim meets an exception to
the procedural default rule. Doc. 68 at 26. However, Marshall failed to make this
argument previously, and he may not use a Rule 59(e) motion to “raise argument[s]
. . . that could have been raised prior to the entry of judgment.” Arthur, 500 F.3d at
1343 (internal quotation marks omitted). Alternatively, reconsideration is still not
warranted even if this claim was not procedurally defaulted. To begin, Marshall seeks
reconsideration in part based on his contention that Hurst v. Florida, 577 U.S. 92
(2016), is an intervening change in controlling law. Doc. 68 at 27. Hurst is not new
law, however, and was decided long before the conclusion of briefing in this case.
And, for a petitioner to bring a motion to reconsider based on an intervening change
in controlling law, the change must have occurred after briefing is concluded and is
under review. Pouyeh, 66 F. Supp. 3d at 1378-79. Moreover, because Hurst does not
apply retroactively to Marshall’s case, the court disagrees with Marshall that the
failure to consider Hurst “will result in manifest injustice to Mr. Marshall,” doc. 68
at 26. As the court noted previously, it can consider Hurst “only to the extent it
reflects an application and explication of the Supreme Court’s holding in Ring.” Doc.
60 at 105, n. 52 (internal quotations omitted); see also Waldrop v. Comm’r, Ala. Dep’t
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of Corr., 711 F. App’x 900, 923 n. 6 (11th Cir. 2017). Marshall has not cited any
Eleventh Circuit case holding otherwise. Doc. 68 at 29. And, as the court explained
previously, “Marshall’s jury unanimously found the facts that made him deatheligible beyond a reasonable doubt.” Doc. 60 at 108. This is consistent with the
“Hurst [holding] that the Sixth Amendment requires a state to base a death sentence
‘on a jury’s verdict, not a judge’s factfinding.’” Waldrop, 711 F. App’x at 922
(quoting Hurst).
Finally, Marshall also cites the Court’s decision in Ramos v. Louisiana, _ U.S. _,
140 S. Ct. 1390 (2020), in support of reconsideration. Doc. 68 at 29. Although
Marshall’s petition was still pending before this court when the Supreme Court issued
Ramos, Marshall never filed a notice of supplemental authority to argue Ramos favors
his petition. As such, Ramos does not qualify as an intervening change in controlling
law.6 Pouyeh, 66 F. Supp. 3d at 1378-79; Schiller v. Physicians Res. Grp, Inc., 342
F.3d 563, 568 n. 3 (5th Cir. 2003).
Moreover, this court’s decision is consistent with Ramos’s holding that “the Sixth
Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal
court, it requires no less in state court.” 140 S. Ct. at 1397. The state jury unanimously found
Marshall guilty of two crimes that included the aggravating factors necessary to sentence a
defendant to death. Doc. 13, Vol. 6, R-15, 734-736; Ala. Code §§ 13A-5-45(e) & (f); 13A-5-59.
6
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E.
Marshall requests reconsideration of his claim that Alabama’s lethal injection
protocol violates the Eighth Amendment. Docs. 7 at 53-54; 68 at 30. In his motion,
Marshall repeats his previous argument that “the death penalty itself is cruel and
unusual punishment,” based on its purported “serious unreliability, . . . arbitrariness
. . . , and . . . unconscionably long delays[.]” Docs. 7 at 52-53 (internal quotations
omitted); accord 68 at 30-31. The court rejected this argument, noting that “capital
punishment is constitutional.” Doc. 60 at 109 (quoting Baze v. Rees, 553 U.S. 35, 47
(2008)). The court declines to reconsider its decision solely because Marshall
disagrees with it. Daughtry, 2014 WL 466100, at *2.
F.
Marshall seeks reconsideration, doc. 68 at 20, of his claim that his “conviction and
sentence are unconstitutional because the State withheld favorable material evidence,
in violation of Brady v. Maryland, 373 U.S. 83 (1963)[,]” doc. 7 at 54. The court
found that Marshall had failed to exhaust this claim in state court, and, alternatively,
that “Marshall has failed to establish a Brady violation.” Doc. 60 at 111. Marshall
contends in his motion that the court did not properly weigh the evidence. See doc.
68 at 20-22. Such an argument falls short of showing the manifest error necessary for
reconsideration. See Daughtry, 2014 WL 466100, at *2.
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G.
Finally, Marshall asks the court to reconsider the denial of a certificate of
appealability, stating only “[f]or all the reasons set out herein, Mr. Marshall has more
than adequately shown that, at the very least, these issues are debatable.” Docs. 68 at
31; 61. However, none of Marshall’s arguments for reconsideration have merit, and
his reliance on them is insufficient to warrant reconsideration.
IV.
To close, Marshall has not shown that the court committed manifest error when
it denied the claims at issue. Further, there has been no intervening change in
controlling law. Consequently, Marshall’s Rule 59(e) Motion to Alter, Amend or
Vacate, doc. 68, is DENIED. The court finds that Marshall’s claims do not
“demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to
proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Finally, no “jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling[s].” Slack, 529 U.S. at 484. Therefore, the court DENIES a
certificate of appealability with regard to all claims. 28 U.S.C. § 2253(c).
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DONE the 13th day of August, 2021.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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