Sasser v. Hobbs

Filing 169

MEMORANDUM OPINION AND ORDER denying 164 Motion to Alter or Amend Judgment filed by Andrew Sasser. Signed by Honorable Jimm Larry Hendren on September 7, 2011. (cap)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ANDREW SASSER

PETITIONER

V.

CASE NO. 00-4036

RAY HOBBS, Director,
Arkansas Department of
Correction

RESPONDENT

MEMORANDUM OPINION AND ORDER
Currently before the Court are the Motion to Alter or Amend
Judgment

Pursuant

to

Fed.

R.

Civ.

P.

59(e),

ECF

No.

164;

Respondent’s Response in Opposition, ECF No. 165; and Petitioner’s
Reply, ECF No.

168.

Petitioner seeks to have this Court Alter or

Amend the Judgment for various reasons as set forth below, and to
grant habeas relief for the Petitioner.

Respondent opposes the

motion, contending that Petitioner has failed to show that the
judgment was clearly erroneous and would work a manifest injustice.
ECF No.

165.

The Court finds that these matters are ripe for

consideration.

For the reasons stated in this Order, Petitioner’s

motion, ECF No.

164, is hereby DENIED.

“Rule 59(e) motions serve the limited function of correcting
manifest errors of law or fact or to present newly discovered
evidence.”

United States v. Metro. St. Louis Sewer Dist., 440 F.3d

930, 933 (8th Cir. 2006) (internal quotation and citation omitted).
“Such motions cannot be used to introduce new evidence, tender new
legal theories, or raise arguments which could have been offered or

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raised prior to entry of judgment.”

Id.

In a habeas action, a

Petitioner may not use a Rule 59(e) motion to file what in reality
is a second or successive petition without proper authorization.
United States v. Lambros, 404 F.3d 1034, 1036, 1037 (8th Cir. 2005),
cert. denied, 516 U.S. 1135 (2005) (finding that the petitioner’s
Rule 59(e) motion “sought ultimately to resurrect the denial of his
earlier § 2255 motion” and upheld the district court’s dismissal, as
the motion was properly construed as an effort to file a successive
motion for postconviction relief).
This Court concludes that 1) there has been no intervening
change in controlling law; 2) Petitioner has not established the
availability of new evidence that was not available previously; and
3) there was no clear error of law or manifest injustice in denying
Petitioner’s request for a writ of habeas corpus.
The Court will consider Petitioner’s Motion to Amend or Alter
the Judgment relative to each argument set forth in his motion.
I.

Argument I:

The Court has erroneously limited the reach of
Atkins v. Virginia,

Argument II:

The Court selectively utilizes Arkansas’
Mental Retardation Statute.

and

Petitioner argues that this Court erroneously limited the reach
of Atkins v.

Virginia, 536 U.S. 304 (2002), to only prohibiting the

execution of a person who is mentally retarded at the time of
execution.

Petitioner, in his second argument, makes a similar

contention regarding Arkansas’ mental retardation statute.
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It is Petitioner’s position that the Court failed to consider
whether Petitioner was mentally retarded at the time he committed
capital murder, as required by both the Arkansas statute and Atkins
itself.
This Court, in response to Petitioner’s contention in his posthearing brief, that Arkansas law was only concerned with Petitioner’s
possible mental retardation at the time of the offense and therefore
only the IQ score most contemporaneous to the crime was relevant, did
reason that Atkins would also prevent the execution of a person who
was mentally retarded at the time of execution, regardless of that
persons’ mental state at the time of the crime, therefore making
Petitioner’s more recent IQ scores also relevant.

ECF No.

163.

Evidence presented at the evidentiary hearing also established that
IQ scores remain somewhat constant throughout one’s adult life, and
although not contemporaneous with the crime, more recent scores could
provide an important piece of the overall understanding of an
individual’s intellectual functioning.

See ECF No.

157.

For those reasons, this Court considered the most recent IQ
examination given to Petitioner, although Petitioner argued that
score should be irrelevant to the Court’s decision in this matter.
Id.

However, this Court also considered the IQ examination given to

Petitioner most contemporaneous to the offense, finding that score
also failed to meet the preponderance of evidence standard in
establishing “significantly subaverage intellectual functioning.”

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Id.
A plain reading of the opinion from this Court makes it clear
the Court never limited Atkins or the Arkansas statute, either
expressly or implicitly, to mental retardation as it may have existed
at a single point in time – be it contemporaneous with execution or
with the offense.

In fact, the Court specifically reviewed the

importance of the data available relative to the time of the crime
and the data available closer to the current date.
n.

14.

See ECF No.

163,

Petitioner’s selective reconstruction of statements made by

this Court in evaluating Petitioner’s own arguments creates no
manifest error of law or fact.

Accordingly, this Court finds no

basis for Petitioner’s contention of error on these points.
II.

Argument III:

Petitioner

Mr.
Sasser established by a preponderance of
the evidence that at the time of the capital
homicide he met the statutory criteria in
Arkansas
for
an
individual
with
mental
retardation.

contends

this

Court

incorrectly

dismissed

Petitioner’s 1994 IQ score by not finding it to be “determinative”
of the issue before the Court and by not considering the Flynn
Effect.

This Court, again, clearly gave full consideration to the

1994 score, and gave consideration to the Flynn Effect to the extent
required.
In its Order, this Court made clear that the application of the
Flynn Effect was irrelevant to this matter, because even if applied
by this Court it did not cause Petitioner to exhibit an IQ score of
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70 or below by a preponderance of the evidence.

The Arkansas

statutory scheme requires “significantly subaverage intellectual
functioning,” which is a score of 70 or below.
Court’s

Order,

the

evidence

presented

to

As set forth in the
the

Court

was

that

Petitioner may have, in 1994, achieved a score which would include
in its statistical range a score of 70, if the Flynn Effect was
applied.

However, there was no evidence that the 70 included in the

range of possible scores of IQ was any more or less likely than any
other score in the same range.
Petitioner goes on to argue that the Arkansas statute would
allow

for

a

accompanied

combination
by

adaptive

of

an

IQ

deficits

to

score
show

in

a

range

mental

of

71-75

retardation.

However, the Arkansas Supreme Court, while never expressly stating
a “cut off score” exists, has not favored the recognition of, and
does not appear to recognize, a score in the range of 71-75 to
establish

its

requirement

intellectual functioning.”

of

“significantly

See e.g., Engram v.

367, 373 n.3 (2004); Miller v.

subaverage

general

State, 200 S.W.3d

State, ___ S.W.3d ___, 2010 WL

129708, *6-7 (Ark. Jan 7, 2010). Indeed, Petitioner’s expert and the
leading literature in this area uses the phrase employed in the
Arkansas

statutory

scheme

of

“significantly

subaverage

general

intellectual functioning” to specifically reference a score of 70.
Thus, there is no manifest error to warrant the judgment to be
altered or amended at this time.

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Additionally,

the

arguments

presented

are

reiterations

of

arguments Petitioner previously made, or could have made, in support
of his habeas petition.
(8th Cir. 2006) (“A

See Williams v. Norris, 461 F.3d 999, 1004

Rule 59(e) motion cannot be used to raise

arguments which could, and should, have been made before the trial
court entered final judgment.”) (additional citation omitted); Mincey
v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir. 2000) (explaining that
“the function of a motion to alter or amend a judgment is not to serve
as a vehicle to relitigate old matters”).
III.

CONCLUSION
In light of the above findings, the Court finds that Petitioner’s

Motion to Alter or Amend Judgment Pursuant to Fed.
59(e), ECF No.

R.

Civ.

P.

164, should be and hereby is DENIED.

IT IS SO ORDERED this 7th day of September 2011.
/S/ Jimm Larry Hendren
Hon. Jimm Larry Hendren
Chief United States District Judge

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