Wessinger v. Cain, et al

Filing 156

RULING and ORDER: Petitioner's 139 MOTION to Alter or Amend Judgment is GRANTED and the case is reopened as to Petitioner's Claim XI-C (doc. 135 at 65) as provided herein. A hearing will be held on 12/13/2012. The parties will brief both issues beforehand. Wessinger will file his brief within 60 days of the date of this Order and the Defendant will file an opposition within 30 days thereafter. Signed by Judge James J. Brady on 5/15/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TODD KELVIN WESSINGER
CIVIL ACTION
VERSUS
NO. 04-637-JJB-SCR
BURL CAIN, WARDEN

RULING AND ORDER
This matter is before the Court on a Motion to Alter or Amend Judgment
(doc. 139) brought by the Plaintiff, Todd Wessinger (“Wessinger”). The Motion,
brought under Rule 59(e) of the Federal Rules of Civil Procedure, asks the Court
to alter or amend its Judgment on Petition for Writ of Habeas Corpus (doc. 137),
which denied all Wessinger’s claims for relief.

The Defendant opposed the

Motion (doc. 150) and the Plaintiff filed a reply (doc. 151). The Court heard oral
arguments on April 25, 2012. After considering the briefs and oral argument, the
Court will amend its prior Ruling as specified below.
Rule 59(e) provides that “a motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.” The Court’s Ruling
dismissing the Petition was entered on March 13, 2012. The Motion to Alter was
filed on April 10, 2012, thus it is timely. “A Rule 59(e) motion calls into question
the correctness of a judgment.”

Molina v. Equistar Chemicals LP, 261 Fed.

Appx. 729, 733 (5th Cir. 2008) (internal citation omitted). It is not to be used to
merely rehash old arguments or to present new arguments that were available

and should have been raised prior to judgment. Id. Rather, its purpose is to
allow a party to “correct manifest errors of law or fact or to present newly
discovered evidence.” Id. Therefore, the motion must clearly establish either a
manifest error of law or some newly discovered evidence that was not available
before the judgment. Id.
Wessinger presents five factual or legal errors: (1) The Court answered
the wrong question in its 18 U.S.C. §2254(d) determination; (2) the Court
mistreated his claim of ineffective assistance of counsel at the penalty phase of
the trial; (3) the Court made legal and factual errors in denying his claim of
ineffective assistance of counsel during voir dire; (4) the Court erred in denying
relief on his exhausted Brady claim items (Claim V); and (5) the Court erred in
finding certain items from the Brady claim unexhausted and therefore
procedurally barred. The Court finds issues (1),1 (3), and (4) wholly without merit
and will not alter its Ruling as regards to them. Issue (5) is closer but ultimately
without merit. It is issue (2) the Court finds deserving of further proceedings.
Wessinger’s ineffective assistance at the penalty phase claim was brought
in his Amended Petition for Writ of Habeas Corpus (doc. 120 at 232-302).

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The

Wessinger makes the argument that the state habeas court denied his claims on the pleadings under article 928
of the Louisiana Code of Criminal Procedure rather than article 929, which provides for summary disposition.
Therefore, instead of analyzing the reasonableness of each substantive decision by the trial court, the Court should
have been analyzing the reasonableness of the decision to dismiss each claim for failure to state a claim. While an
interesting argument, Wessinger presents no case law from any jurisdiction that has made such a distinction and
the Court agrees with the State that, even if the trial court had intended to dismiss the claims under article 928—
which the Court is not at all convinced is the case—the effect of such a distinction would not lead to the type of
analysis Wessinger suggests.

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State, in its opposition to the Petition, contended that the claim went “way beyond
what [Wessinger] presented to the state courts for consideration of this claim
below.” (Doc. 129 at 151). In its Ruling, the Court should have agreed that the
claim was a new claim as it went beyond what was presented to the state court;
and therefore should have found it to be unexhausted and subject to a
procedural bar.

When a habeas petitioner presents “material additional

evidentiary support” to the federal court that was not presented to the state court,
he has not exhausted his state remedies. Graham v. Johnson, 94 F.3d 958, 968
(5th Cir. 1996).

When a claim is “significantly different and stronger” than

presented to the state court, it is deemed not exhausted. Brown v. Estelle, 701
F.2d 494 (5th Cir. 1983); see also Kunkle v. Dretke, 352 F.3d 980 (5th Cir. 2003)
(addition of psychological report and mother’s affidavit detailing family history of
mental illness along with concrete instances of abuse of petition presents
“significant evidentiary support” such that claim was not exhausted).
Wessinger presented the following additional evidentiary support of his
ineffective assistance at the penalty phase claim: psychiatric evaluation,
neuropsychological testing, evidence of low intellectual functioning, and evidence
of isolation and abuse. None of this was presented to the state habeas court.
The Court finds that the additional evidence Wessinger has presented to this
Court is material and significantly different and stronger than what he presented
to the state court. Therefore the claim was not exhausted and is procedurally

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barred.

The Court’s ruling was manifestly erroneous in this respect and the

Judgment will be vacated as to claim XI-C.
As claim XI-C is procedurally barred, Wessinger is not allowed to bring it
unless he can show cause and prejudice for his failure to exhaust it at the state
court level. To show cause, Wessinger points to a recent Supreme Court case,
Martinez v. Ryan, released on March 20, 2012.

132 S.Ct. 1309 (2012).

In

Martinez, the Supreme Court held:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Id. at 1320.

In so holding, the Supreme Court expressly provided a narrow

exception to the general rule expressed in Coleman v. Thompson, 501 U.S. 722,
754-55 (1991) that the negligence of an attorney in a post-conviction proceeding
cannot serve as cause for his failure to exhaust. As a preliminary matter, the
Court notes there is a jurisprudential rule in Louisiana that ineffective assistance
claims are generally best suited for post-conviction proceedings.

State v.

Hamilton, 699 So.2d 29, 31 (La. 1997). The Louisiana Supreme Court applid this
rule to Wessinger’s ineffective assistance at trial claim. State v. Wessinger, 736
So.2d 162, 195 (La. 1999).

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The State claims Martinez does not apply to this situation because
Martinez involved a case in which the ineffective assistance at trial was not
brought at all in the initial-review proceeding, unlike the case at bar, which
involves an allegedly ineffective prosecution of the claim. The Court disagrees.
Nothing in either the opinion or the holding indicates such a distinction matters.
As for how he will prove cause, Wessinger claims his initial-review
counsel, Mr. Gisleson, was ineffective during this proceeding because he failed
to properly present the ineffective assistance at trial claim in the state court.
Gisleson agrees that his performance was deficient, but only because he
repeatedly was denied funds and time to properly investigate these claims.
There is case law supporting this ineffectiveness through denial of funds theory.
See Gary v. Hall, 558 F.3d 1229, 1251-1253 (11th Cir. 2009); Blake v. Kemp,
758 F.2d 523 (11th Cir. 1985). The Court finds there are questions of law and
fact as to whether this theory applies in this case.
If Wessinger is able to show his initial-review counsel was ineffective in
prosecuting his ineffective assistance at penalty phase claim, then he must show
prejudice. This prejudice prong is satisfied only by a showing that, but for the
error, he might not have been convicted. U.S. v. Guerra, 94 F.3d 989, 994 (5th
Cir. 1996). In the context of the penalty phase, this means he might not have
received the death penalty. If he can make this showing, then the Court will
consider the underlying ineffective assistance at the penalty phase claim de novo
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under the Strickland v. Washington standard.

The Court will handle both

inquiries together at a hearing.
As for his unexhausted Brady claim, the Court disagrees with Wessinger
that Martinez allows him to get around the procedural bar. Martinez only applies
to claims of ineffective assistance of counsel at trial that are procedurally barred
because of ineffective assistance of counsel at the initial-review proceeding. 132
S.Ct. at 1320.

This provides for equitable relief in situations where a petitioner

would otherwise not have the substance of a claim heard. Brady claims are
allowed to be heard on direct appeal. Most of Wessinger’s Brady claims were
heard on direct review. Martinez does not allow Wessinger to get around
Coleman’s prohibition against using ineffective assistance during post-conviction
proceedings as cause to excuse a procedural bar for the claims that were not
brought before the state court. This claim is without merit.
CONCLUSION AND ORDER
For these reasons, Petitioner’s Motion to Alter or Amend Judgment (doc.
139) is GRANTED and the case is reopened as to Petitioner’s Claim XI-C (doc.
135 at 65) as provided herein. A hearing will be held on December 13, 2012.
The parties will brief both issues beforehand. Wessinger will file his brief within
sixty (60) days of the date of this Order and the Defendant will file an opposition
within thirty (30) days thereafter. Both sides will be limited to twenty (20) pages.
The parties are encouraged to refer to previous briefs (by docket and page
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number) in order to avoid merely repeating prior factual, procedural, and
evidentiary recitations.
Signed in Baton Rouge, Louisiana, on May 15, 2012.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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