Weary v. Cain et al
ORDER AND REASONS granting in part and denying in part 30 Motion for relief from judgment; denying 33 Motion for an evidentiary hearing; denying 33 Motion to Appoint Counsel; denying 34 Motion for an in-camera inspection of the tape of the proceedings held on May 23, 2012. Signed by Judge Helen G. Berrigan on 08/19/2013. (kac, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 10-1793
N. BURL CAIN, ET AL
ORDER AND REASONS
Before the Court are (1) Andrew Weary’s motion to re-open civil action number 10-1793
and to grant Weary's writ of habeas corpus unconditionally pursuant to Federal Rule of Criminal
Procedure [sic] 60(b)(2),(5) and (6) vacating this District Court's earlier grant of a conditional writ,
where the Louisiana State Courts failed to comply with original writ in a timely manner and failed
to comply with the conditions of the writ ("Rule 60(b) motion"); Rec. Doc. 30; (2) Weary’s motion
for an evidentiary hearing and appointment of counsel; Rec. Doc. 33; and (3) Weary’s motion for
an in-camera inspection of the tape of the proceedings held on May 23, 2012; Rec. Doc. 34. The
State of Louisiana ("the State") opposed the Rule 60(b) motion, and Weary replied. Rec. Doc. 31;
Rec. Doc. 35. The State also opposes the other two motions, and Weary also replied. Rec. Doc. 38
& 41. Weary's Rule 60(b) motion is partially granted and partially denied, and the other two
motions are denied for the following reasons.
Andrew Weary was convicted of armed robbery and attempted first degree murder. After
exhausting state appellate procedures, he filed a writ of habeas corpus on June 17, 2010 alleging,
inter alia, that his convictions for attempted first degree murder and armed robbery violated his
constitutional rights under the double jeopardy clause of the Fifth Amendment and the Louisiana
State Constitution. Rec. Doc. 1. The Magistrate Judge found that several of petitioners claims
should be denied including his claims for constructive denial of effective assistance of counsel,
ineffective assistance of counsel, and insufficient evidence to convict him of the armed robbery. Rec.
Doc. 24 at 44. However, the Magistrate Judge found that there was merit to Weary's claim of double
jeopardy. Id. at 41-42. The Magistrate Judge relied on Neville v. Butler, 867 F.2d 886, 890 (5th Cir.
1989), to recommend that the proper remedy for a violation of the Double Jeopardy Clause of the
5th Amendment was to grant Weary's petition only as to this claim "unless, within 90 days from the
entry of a judgment by this Court, the Louisiana State Courts does the following: (1) vacates the
sentence imposed for the armed robbery and attempted first degree murder convictions; (2) vacates
the conviction for one of the offenses; and (3) resentences Weary on the remaining offense." Id. at
44. This Court adopted the Magistrate Judge’s Report and Recommendation, and entered judgment
granting Weary partial and conditional habeas relief based on the condition detailed above on
February 23, 2012. Rec. Doc. 27; Rec. Doc. 28.
The Fifth Circuit has held that a habeas decision of this type to "end a state criminal
proceeding as part of the habeas remedy" by "conditionally dismissing the underlying indictment
is warranted only in narrow circumstances." Jones v. Cain, 600 F.3d 527, 542 (5th Cir. 2010). The
Court explicitly stated that an example of the narrow set of circumstances warranting this type of
remedy is when there is a double jeopardy violation such as the double jeopardy violation present
here. Id. This is because the constitutional problem that led to the writ cannot be cured by a new
The Twenty-Second Judicial District Court for the Parish of Washington, State of Louisiana
held proceedings on May 23, 2012 to comply with the district court’s order. Rec. Doc. 31 at 2.
Weary filed the present motion to re-open his civil action under Rule 60(b) alleging that the
Louisiana State Courts failed to comply with the original writ in a timely manner and failed to
comply with the conditions of the writ. Rec. Doc. 30. His two additional motions for an evidentiary
hearing and appointment of counsel as well as an in-camera inspection to review the state court
proceedings relate to the same claim. Rec. Doc. 33; Rec. Doc. 34.
As a preliminary matter, it is determined that this Court has jurisdiction over Weary’s Rule
60(b) motion. When Weary filed a notice that the State had failed to comply with the conditional
writ, this Court construed Weary's pleading as a notice of appeal and referred it to the 5th Circuit.
Rec. Doc. 29. The Fifth Circuit ruled that "[i]t is apparent from the document that the petitioner was
asking the district court to enforce its order and was not seeking to appeal to this court." Rec. Doc.
30 at 25. When a motion does not contain a habeas claim attacking the substance of the merits of
a federal resolution, but instead requests relief from “some defect in the federal habeas proceedings,”
the district court has jurisdiction to adjudicate the claim. Gonzalez v. Crosby, 545 U.S. 524, 532,
125 S. Ct. 2641, 2648, 162 L. Ed. 2d 480 (2005). Here, Weary’s motions are confined to a
“[n]onmerits aspect of the first federal habeas proceeding . . . .” Id. at 535, 2648. Thus, this Court
has proper jurisdiction to adjudge Weary’s motions.
B. Standard of Review
A motion for relief that is filed more than ten days after the judgment at issue is analyzed
under Federal Rule of Civil Procedure 60(b). Texas A & M Research Found. v. Magna Transp.,
Inc., 338 F.3d 394, 400 (5th Cir. 2003). Rule 60(b) articulates several reasons that “a court may
relieve a party or its legal representative from a final judgment, order, or proceeding.” Fed. R. Civ.
P. 60(b). These reasons include mistake, surprise, fraud, misconduct, or any other reason justifying
relief. Fed. R. Civ. P. 60(b). A movant must “show ‘extraordinary circumstances’ justifying the
reopening of a final judgment.” Gonzalez v. Crosby, 545 U.S. at 535, 125 S. Ct. at 2649 (quoting
Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)). “Such
circumstances will rarely occur in the habeas context.” Id.
III. LAW AND ANALYSIS
Weary argues in his Rule 60(b) motion that he should be released from state custody through
an order granting him absolute rather than conditional habeas relief, and his armed robbery
conviction should be vacated rather than his attempted first degree murder conviction. Rec. Doc.
30 at 20; Rec. Doc. 30 at 19. The contentions that are the basis of Weary’s Rule 60(b) motion are
that (1) the state court took ninety-one days rather than the allotted ninety days to comply with the
district court’s order, (2) the state court deliberately left Weary in double jeopardy by not abiding
by the district court mandate granting partial habeas relief, and (3) the state court should have
vacated Weary’s conviction for armed robbery rather than for attempted first degree murder. Rec.
Doc. 30 at 12. In granting Weary partial habeas relief, the district court mandated the state court to
do three things: (1) vacate the sentences for the armed robbery and attempted first degree murder
convictions; (2) vacate the conviction for one of the offenses; and (3) resentence petitioner on the
remaining conviction. Rec. Doc. 24 at 44. Weary claims that the state court did not comply with
the district court’s mandate, and he brings a motion for relief under Federal Rules of Civil Procedure
60(b)(2), (5), and (6). Rec. Doc. 30 at 1.
A. Rule 60(b) motion
Relief is not available to Weary under any of the subparts of Rule 60(b) he has referenced.
Rule 60(b)(2) grants courts the power to relieve a party from a final judgment because of newly
discovered evidence that could not have been discovered in time to move for a new trial under Rule
59(b). Weary presents no such evidence, and therefore cannot gain relief under Rule 60(b)(2). Rule
60(b)(5) offers relief if (1) the judgment has been “satisfied, released or discharged;” (2) the
judgment is “based on an earlier judgment that has been reversed or vacated;” or (3) “applying [the
judgment] prospectively is no longer equitable.” Weary’s claim does not fall under any provisions
of this rule. The first provision is inapplicable because Weary’s claim is specifically that the district
court’s judgment has not been satisfied. Similarly, the second provision is inapplicable because the
district court’s judgment is not based on an earlier judgment that has been reversed or vacated. The
district court’s grant of Weary’s habeas petition only indicated that one of the convictions that was
part of the earlier judgment be vacated, not that the earlier judgment against Weary was reversed or
vacated. The third provision is also inapplicable. The nature of the district court’s judgment was
prospective only such that habeas relief was to be granted unless the state court complied with the
Rec. Doc. 24.
Weary does not seek relief from the judgment applied
prospectively, but rather enforcement of the district court judgment. Rec. Doc. 30.
Weary also requests relief under Rule 60(b)(6). Rule 60(b)(6) is the catch-all provision of
Rule 60(b). It grants federal courts broad authority to relieve a party from a final judgment
. . . provided that the motion is . . . not premised on one of the grounds for relief enumerated in
clauses (b)(1) through (b)(5).” Liljeber v. Health Services Acquisition Corp., 486 U.S. 847, 863, 108
S.Ct. 2194, 2204, 100 L.Ed.2d 855 (1988). Despite this “broad authority,” Weary’s claim is not
articulated as relief from a final judgment, but rather as an enforcement of a previous judgment.
Rec. Doc. 30. Therefore, the Court should not grant relief under this rule based on the context of
B. Weary’s Request for Immediate Release
While Weary’s motion is not cognizable under Rule 60(b), his request for an absolute grant
of habeas relief must be evaluated. The purpose of a conditional writ, as was granted in this case,
is to “alert the state court to the constitutional problem and notify it that the infirmity must be
remedied.” Smith v. Lucas, 9 F.3d 359, 367 (5th Cir. 1993). “[T]he consequence when they fail
to do so is always release.” Wilkinson v. Dotson, 544 U.S. 74, 87, 125 S.Ct. 1242, 1251, 161
L.Ed.2d 253 (2005). Weary relies on this statement by the Supreme Court to justify his request for
relief in this case. This Court must therefore inquire as to whether the state court complied, and if
not, whether release is warranted.
I. State Court Noncompliance
As stated above, when the district court granted Weary partial habeas relief, it mandated that
the state court (1) vacate the sentences for the armed robbery and attempted first degree murder
convictions; (2) vacate the conviction for one of the offenses; and (3) resentence petitioner on the
remaining conviction. Rec. Doc. 24 at 44. Weary claims that the state court did not vacate either
of his convictions, and that proceedings were held outside of the time period dictated by the district
court’s judgment. Rec. Doc. 30; Rec. Doc. 35.
The transcript of the state court proceedings from May 23, 2012 reveals that the first mandate
to vacate the prior sentences was clearly executed.1 Rec. Doc. 38-1 at 8. However, the court did
not vacate the conviction for one of Mr. Weary’s offenses as dictated in the second district court
mandate. During the proceeding, the Assistant District Attorney chose to nolle pross the attempted
first degree murder count. Id. at 3. The state court indicated that this action complied with the
district courts’ mandate to vacate one of Mr. Weary’s convictions. This was error.
Nolle pross is a variant of the phrase nolle prosequi, which is a formal legal notice by a
prosecutor that she is abandoning a lawsuit or prosecution. See Black’s Law Dictionary 1074 (8th
ed. 2004). This phrase is used before a final judgment, and does not vacate a conviction. See United
The Court: “That’s what the federal court dictated, and that’s the appreciation of my role
today, is to vacate – which the Court does vacate the prior sentences which were imposed.” Rec.
Doc. 38-1 at 8.
States v. Salinas, 693 F.2d 348, 350 (5th Cir. 1982) (noting the abandonment of prosecution prior
to the empaneling of the jury via nolle prosequi); see also State v. Shepherd, 2008-1556 (La.App.
3 Cir. 6/3/09), 11 So.3d 729, 730 n.1 (defining nolle prosequi as the abandonment of a prosecution).
For a conviction to be vacated, the presiding court must make a statement of vacation, or the
convicted party must move to vacate the conviction. See Toledo-Hernandez v. Mukasey, 521 F.3d
332, 336 (5th Cir. 2008); State v. Burton, 46, 552 (La.App. 2 Cir. 9/21/11), 74 So.3d 253, 253-54.
The state court was noncompliant. After vacating one of Weary's convictions, the State Court must
resentence Weary on the remaining offense.2
Weary also alleges that the State did not hold proceedings in a timely fashion. Rec. Doc.
35 at 4. Weary’s habeas petition was to be granted unless “within 90 days from the entry of [the]
judgment by [the district court], the Louisiana State Courts” complied with the aforementioned
mandates. Rec. Doc. 28. Under Federal Rule of Civil Procedure 6(a)(1)(A), the day of the event
that triggers the period is excluded from the count. The district court entered judgment on February
23, 2012, Rec. Doc. 28, and counting from February 24, 2012, the state court held proceedings to
comply 90 days later on May 23, 2012. Rec. Doc. 38-1. The state court was compliant insofar as
the proceedings were timely. However, the state court is still in violation of the district court’s time
It is not clear if the State Court resentenced Weary in the last proceeding, but in any case, the
State Court must now do so after it vacates one of the convictions. In the last proceeding, the
State Court simply deferred to the judge that had heard and sentenced based on the conviction
for both offenses: “She was my predecessor immediately preceding my election. I put great
deference in her ability, wisdom in sentencing . . . . [T]he Court is going to maintain the prior
sentence of 75 years, without the benefit of parole . . . .” Rec. Doc. 38-1 at 9.
requirement. Specifically, the state court failed to vacate one of Weary’s convictions within 90
days. Thus, the inquiry turns to whether this state court error requires this Court to grant Weary
absolute habeas relief ordering his release.
ii. Release Under a Conditional Grant of Habeas Relief
This Court is not required to order Weary’s release. The Supreme Court has stated that
“[c]onditional writs are not an all-purpose weapon with which federal habeas courts can extort from
the respondent custodian forms of relief short of release . . . .” Wilkinson, 544 U.S. at 87, 125 S.Ct.
at 1251. However, the Court has not stated that a district court cannot grant the state court a time
extension to comply with the mandates of a conditional writ. While the Court has not spoken about
this issue directly, the Court has opined that “[f]ederal habeas corpus practice
. . . indicates that a court has broad discretion in conditioning a judgment granting habeas relief.
Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters 'as law
and justice require.'” Hilton v. Braunskill, 481 U.S. 774, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724
(1987) (internal quotation marks omitted).
While neither the Fifth Circuit nor the Supreme Court have directly addressed this
issue, several circuit courts have. These circuit courts have interpreted the Supreme Court’s grant
of a district court’s “broad discretion in conditioning a judgment granting habeas relief” to include
the power to allow the state court a time extension after noncompliance of a conditional habeas relief
mandate. Id. In Gilmore v. Bertrand, 301 F.3d 581, 583 (7th Cir. 2002), the court held that it is part
of the equitable power of the district court to grant the state court a time extension to cure a
constitutional deficiency. The court noted that when the state fails to act in a timely manner, the
release of a prisoner lies within the discretion of the district court. In Gibbs v. Frank, 500 F.3d 202,
208 (3d Cir. 2007), the Third Circuit agreed with the Seventh Circuit’s interpretation of the district
court’s power, noting that “[t]he broad discretion inherent in a district court’s habeas powers include
the ability to evaluate whether the Commonwealth has provided a legitimate reason for its delay .
. . subject to a conditional habeas writ.” Gibbs, 500 F.3d at 208. It follows that a good faith mistake
by the state court would constitute a legitimate reason for delay.
The Sixth and Ninth Circuits have also determined that the district courts have the
power to grant the state a time extension to cure a constitutional deficiency. In the unreported case
McKitrick v. Jefferys, 255 Fed. App’x 74, 75 (6th Cir. 2007), the Sixth Circuit affirmed the district
court’s refusal to grant the petitioner immediate release due to the state’s failure to precisely comply
with the terms of the conditional writ.
The court noted that “[w]hen a petitioner alleges
noncompliance with a conditional order, the district court must make a finding concerning the
sufficiency of the action that the state has taken . . . [as well as] the prejudice to the petitioner.” Id.
at 76. Based on the state’s substantial compliance, the court found that the state’s error did not
justify the petitioner’s immediate release. Id. at 77. Conversely, in Harvest v. Castro, 531 F.3d 737,
749 (9th Cir. 2008), the court ultimately found that the district court abused its discretion in
modifying the conditional writ because of the state court’s particular lack of excuse for
noncompliance. However, the court still “agree[d] with [its] sister circuits that [generally] a district
court can modify its conditional writ even after the time provided in the conditional writ has lapsed.”
Id. at 744.
These cases amount to multiple circuits determining that state court noncompliance with a
conditional habeas writ results in release at the discretion of the district court as law and justice
dictate. A simple mistake or oversight on the part of the state court, when it is attempting to comply
with a district court's mandate, does not mandate this Court to release Weary who has been granted
conditional habeas relief. Therefore, release based on the state court’s error in this case is
unwarranted, and this Court utilizes its authority to grant the state court extra time for compliance.
The Court grants the Louisiana State Courts an additional 90 days to comply with its past order, and
otherwise the writ of habeas corpus shall be granted as to the double jeopardy claim.
C. The Conviction to be Vacated
Weary alleges a problem with the state court proceeding outside of the lack of timeliness and
lack of conviction vacation claims. Specifically, he argues that his armed robbery conviction should
be vacated rather than his attempted first degree murder conviction. Rec. Doc. 30 at 19. Postconviction relief based on double jeopardy claims are typically remedied in the way the district court
demanded here; one of the convictions is left standing, and one is vacated. Neville, 867 F.2d at 887.
While the district court’s order in the present case did not dictate which of Weary’s convictions
should be vacated, Louisiana case law is clear that double jeopardy should be remedied by
eliminating the judgment as to the less severely punishable offense. See Bradford v. Whitley, 953
F.2d 1008, 1011 n.6 (5th Cir. 1992) (indicating that Louisiana law was followed when the
defendant’s conviction carrying the less severe possible penalty was vacated); Neville v. Butler, 867
F.2d at 890 (holding that the presumptive remedy for a double jeopardy violation involving armed
robbery and attempted felony murder convictions is vacation of the conviction carrying the less
severe possible penalty); State v. Doughty, 379 So.2d 1088 (La. 1980) (“[w]here multiple
punishment has been erroneously imposed the proper appellate procedure is to eliminate the effect
of the less severely punishable offense”).
Under Louisiana state law, armed robbery is punishable by “imprison[ment] at hard labor
for not less than ten years and for not more than ninety-nine years, without benefit of parole,
probation, or suspension of sentence,” La. R.S. 14:64, while attempted first degree murder is
punishable by “imprison[ment] at hard labor for not less than ten nor more than fifty years without
benefit of parole, probation, or suspension of sentence.” La. R.S. 14:27. The less severely
punishable offense then, is attempted first degree murder. The prosecution incorrectly entered a
nolle pross instead as to the attempted murder charge, rather than the court vacating both
D. Motions for Evidentiary Hearing with Counsel and In-Camera Review
The basis of Weary’s motions for an evidentiary hearing with the appointment of counsel
and an in-camera review of the state court proceedings is that the state court did not comply with
the district court’s judgment. Rec. Doc. 33 at 1; Rec. Doc. 34 at 1. The Court does not address
Weary's request to attend the hearing, or appoint counsel because it does not grant him an
evidentiary hearing. Rec. Doc. 33 at 2. Weary contends that an evidentiary hearing and an in12
camera inspection will reveal that the state court did not follow the instruction of the district court.
Rec. Doc. 34 at 1. However, Weary does not illuminate what specific discrepancy will be uncovered
by a review of evidence outside of the transcript. In response to these motions, the State provided
at transcript of the Louisiana State Courts' proceedings. Rec. Doc. 38-1, Exh. A. The Court carefully
reviewed the transcript. Considering this Court's acknowledgment of the State Court's need to
comply with its previous Order, it is unnecessary to have either an evidentiary hearing or an incamera inspection of the state court proceeding for which there is a transcript composed by a sworn
The constitutional infirmary of Weary’s convictions under the double jeopardy clause must
be remedied. The Court finds that allowing the state court extra time for compliance on its own will
lessen the number of mistakes of this nature in the future. The Court offers the state a time
extension of 90 days from the date of this judgment to comply with the mandates of the conditional
writ. Rec. Doc. 27.
It is ORDERED that Weary’s motion for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b) is GRANTED IN PART and DENIED IN PART. Rec. Doc. 30.
IT IS FURTHER ORDERED that unless within 90 days from the issuance of this Order and
Reasons, the Louisiana State Courts comply with this Court's past Order and Judgment, petitioner's
claim will be granted as to the double jeopardy claim. Rec. Doc. 27; Rec. Doc. 28.
IT IS FURTHER ORDERED that Weary’s motion for an evidentiary hearing and
appointment of counsel is DENIED. Rec. Doc. 33.
IT IS FURTHER ORDERED that Weary’s motion for an in-camera inspection of the tape
of the proceedings held on May 23, 2012 is DENIED. Rec. Doc. 34.
New Orleans, Louisiana this 19th day of August, 2013.
HELEN G. BERRIGAN
UNITED STATES DISTRICT COURT
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