Wessinger v. Cain, et al

Filing 246

RULING AND ORDER: Petitioner's 234 Motion for Summary Judgment, or, in the Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for Relief from Judgment is DENIED. Signed by Judge John W. deGravelles on 12/19/2019. (KAH)

LIUNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TODD KELVIN WESSINGER
CIVIL ACTION
VERSUS
NO. 04-637-JWD-EWD
DARREL VANNOY
RULING AND ORDER
This matter comes before the Court on the Petitioner’s Motion for Summary Judgment, or,
in the Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for
Relief from Judgment (Doc. 234) filed by Petitioner Todd Kelvin Wessinger (“Petitioner” or
“Wessinger”). Respondent State of Louisiana (“Respondent”) opposes the motion (Doc. 244), and
Petitioner has filed a reply (Doc. 245). Oral argument is not necessary. The Court has carefully
considered the law, the facts in the record, and the arguments and submissions of the parties and
is prepared to rule. For the following reasons, Petitioner’s motion is denied.
I.

Relevant Factual and Procedural Background
The following facts are taken entirely from Petitioner’s Statement of Uncontested Material

Facts in Support of Rule 56 Motion for Summary Judgment or, in the Alternative, for Relief from
Judgment Under Rule 60(b)(6) (Doc. 234-2) (“SUMF”). Respondent failed to controvert these
facts, as required by the local rules. 1 Accordingly, all of the facts set forth in the SUMF are
“deemed admitted, for purposes of the motion[.]” M.D. La. LR 56(b).

1

Specifically, Middle District of Louisiana Local Civil Rule 56(b) provides:
Opposition to Summary Judgment. Each copy of the papers opposing a motion for summary
judgment shall include a separate, short and concise statement of the material facts as to which the
opponent contends there exists a genuine issue to be tried. All material facts set forth in the statement
required to be served by the moving party will be deemed admitted, for purposes of the motion,
unless controverted as required by this Rule.

(emphasis added).

A. State Capital Trial Proceedings
Petitioner was charged in state court in Baton Rouge, Louisiana with two counts of first
degree murder for the November 19, 1995 shooting deaths of Stephanie Guzzardo and David
Breakwell. (SUMF ¶ 1.) At the time of his first-degree murder trial on these charges, which began
on June 16, 1997, Petitioner was represented by Baton Rouge attorneys Greg Rome and Joseph
William “Billy” Hecker, who is now deceased, both of whom were appointed as counsel for
Petitioner on January 7, 1997, less than six months prior to trial. (SUMF ¶ 1.) Jury selection began
on June 16, 1997, and eight days later, on June 24, 1997, Petitioner was convicted on both counts.
(SUMF ¶ 1.)
The next day, June 25th, the same jury returned death sentences on both counts following
a defense penalty phase presentation that lasted less than four hours, including cross-examination
by the prosecution. (SUMF ¶ 2.) Hecker, who was solely responsible for the penalty phase of the
trial, did not conduct a mitigation investigation, nor did he employ someone to do so. (SUMF ¶ 2.)
The Louisiana Supreme Court affirmed the convictions and sentences. (SUMF ¶ 2 (citing State v.
Wessinger, 98-1234 (La. 5/28/99); 736 So.2d 162).
B. State Post-Conviction Proceedings
On January 3, 2001, the Louisiana Supreme Court formally appointed Soren Gisleson, a
first-year associate at the New Orleans, Louisiana law firm of Herman, Herman, Katz & Cotlar,
LLP, to represent Petitioner in state post-conviction proceedings following the firm’s agreement
to accept pro bono representation of a death row inmate. (SUMF ¶ 3.)
Prior to formal appointment, on December 27, 2000, Gisleson filed a three-page shell
petition in an effort to stop the one-year clock from running. (SUMF ¶ 4.) “At a status conference

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in February of 2001, the state post-conviction trial court gave Gisleson 60 days, until April 10,
2001, to file a more complete, amended petition.” (SUMF ¶ 4.)
On March 12, 2001, Gisleson filed a motion with the state post-conviction trial court
requesting funding for investigative assistance to establish the factual basis for claims of
ineffective assistance of counsel at the guilt and penalty phases of Wessinger’s trial. (SUMF ¶ 5.)
The motion included general allegations that trial counsel’s preparation of the penalty phase was
“woefully inadequate” and “there is every reason to believe that such investigation would produce
information that should have bene [sic] presented to Mr. Wessinger’s jury.” (SUMF ¶ 5.)
On April 5, 2001, Gisleson filed a motion in the state post-conviction trial court to continue
the April 10, 2001, filing deadline for the state post-conviction petition. (SUMF ¶ 6.)
On April 10, 2001, the state trial court extended the deadline an additional 60 days, until
June 11, 2001, to file an amended state post-conviction petition. (SUMF ¶ 7.) Also, on April 10,
2001, the state trial court ordered Gisleson to petition the Louisiana Indigent Defender and
Assistance Board (LIDAB), which the court found to be responsible for funding the postconviction investigation, to determine if the board would actually fund the investigation and report
back to the court. (SUMF ¶ 7.) Further, the state trial court set an April 24, 2001 hearing date if
there were “any problems with getting funding,” at which time the court told Gisleson, “if you
have any evidence to present, you better have it that day because it won’t be continued to another
day. That issue will be resolved that day.” (SUMF ¶ 7.)
On April 16, 2001, Gisleson notified the state trial court that the Louisiana Indigent
Defense Assistance Board (LIDAB), the Capital Post-Conviction Project of Louisiana (CPCPL)
and the Baton Rouge Indigent Defender Board, all of whom he reached out to for funding and
assistance, took the position that they were not responsible for providing funding for investigation

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in state post-conviction for Petitioner. (SUMF ¶ 8.) The Director of the local Baton Rouge Indigent
Defense Board stated that if the state trial court ordered him to pay for investigative and expert
expenses for Wessinger, as the state trial court did in State ex rel. Jimmy Ray Williams v. Burl
Cain, No. 7-94-871, 19th Judicial District Court, “nothing would be provided, as his office
currently has no funds available.” (SUMF ¶ 8.)
By letter to the state trial court dated April 11, 2001, the director of LIDAB Edward R.
Greenlee wrote that “[t]he only funds available in the LIDAB budget for Capital Post-Conviction
cases have been fully dedicated to the Capital Post Conviction Project of Louisiana (CPCPL).
Unfortunately, the available funds are insufficient to enable CPCPL to assist financially in any
cases where the client is already represented. The funding of the backlog of cases is the
responsibility of the local Indigent Defender Boards.” (SUMF ¶ 9.) Mr. Greenlee also referenced
his testimony to this effect in the case of Jimmy Ray Williams. (SUMF ¶ 9.)
On April 23, 2001, Gisleson filed a motion to continue the April 24th hearing for three
weeks because Petitioner “has been patently unable to secure the testimony of necessary experts
or provide experts with the time to review ‘bare-boned’ facts and evidence of the case” to
determine what expert services are needed, the extent of the services needed, and the cost. (SUMF
¶ 10.) Gisleson further stated that “Petitioner has been unable to arrange for a single expert to
appear or for any affidavits,” and, at the time the April 24, 2001, hearing date was set, “undersigned
counsel did not appreciate that this much time and difficulty would be encountered.” (SUMF ¶ 10.)
The state trial court went forward with the April 24, 2001 hearing. (SUMF ¶ 11.)
The state court denied the request for funding for experts. (SUMF ¶ 11.)
On June 5, 2001, a week before the June 11th state post-conviction petition filing deadline,
Gisleson filed a motion to withdraw with the Louisiana Supreme Court, seeking to be relieved of

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the representation based on his admitted inability “to provide competent representation in postconviction” proceedings in state court “under the time and resource constraints” with which he
was presented. (SUMF ¶ 12.) This motion was denied by the Louisiana Supreme Court, with one
justice concurring and suggesting that counsel for Petitioner “may seek assistance of counsel of
LADAB if he deems that advisable.” (SUMF ¶ 12.)
Gisleson filed an amended state post-conviction petition by the June 11, 2001, deadline set
by the state trial court. (SUMF ¶ 13.)
Following the State’s filing of its response in February of 2003, Gisleson filed a second
amended petition in August of 2003. (SUMF ¶ 14.)
At a September 3, 2003 status conference, the state trial court denied relief, dismissing all
claims in the first amended post-conviction petition as procedurally barred due to lack of factual
support, and denying relief on the merits on the ineffective assistance of trial counsel claims in the
second amended post-conviction petition. (SUMF ¶ 15.) The Louisiana Supreme Court affirmed.
(SUMF ¶ 15 (citing State ex rel. Wessinger v. Cain, 2003-3097 (La. 9/3/04); 882 So. 2d 605).)
C. Federal Habeas Proceedings
1. Pre-Decision Happenings
On September 4, 2004, a day after the adverse state post-conviction ruling by the Louisiana
Supreme Court, Gisleson filed a habeas petition in federal district court raising the same claims
that he raised in the state courts. (SUMF ¶ 16.) This habeas petition included the penalty phase
ineffective assistance of trial counsel claim that was presented to the state postconviction courts
and that was based on trial counsel’s penalty phase failures as reflected in the transcript of the
penalty phase of the trial. (SUMF ¶ 16.)

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After additional counsel was appointed by Judge Brady, Petitioner, through new counsel,
filed an Amended Petition for Writ of Habeas Corpus. (SUMF ¶ 17.) The amended petition
included a claim, Claim XI-C, that trial counsel was ineffective at the penalty phase of Wessinger’s
first degree murder trial. (SUMF ¶ 17.) The claim alleged that trial counsel failed to secure the
services of a mitigation specialist and did not conduct a social history investigation of Petitioner,
and instead called witnesses counsel met for the first time in the hallway outside the courtroom
and presented damaging testimony through counsel’s own unprepared expert witnesses. (SUMF ¶
17.)
Claim XI-C also alleged what trial counsel would have discovered had he conducted a
proper mitigation investigation, including powerful mitigation evidence regarding Petitioner’s
family history of mental illness, alcohol abuse and violence and Petitioner’s own mental illness,
none of which ever had been presented to the state courts. (SUMF ¶ 18 (citing Doc. 120 at 232–
56.).) This mitigation included that Petitioner’s maternal and paternal families have a significant
history of seizure disorders, mental retardation, cerebral palsy and other neurologic and cognitive
impairments and alcohol abuse; that Petitioner struggled with neurologic and psychiatric
symptoms that adversely affected his ability to function over the course of his life; that Petitioner
experienced repeated and severe seizures as a child and was medicated with Phenobarbital; that
Petitioner, who faced great difficulty in school and fell behind his peers academically, suffered
ridicule, humiliation and physical abuse by his father, who singled him out for cruel treatment;
that neuropsychological testing of Petitioner shows signs of significant psychomotor impairment,
right hemisphere abnormality, deficits associated with fetal alcohol spectrum disorder and other
signs of cerebral dysfunction and moderate brain impairment; that Petitioner was raised by parents
whose world view, handed down to their children, was shaped by the circumstance that they grew

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up on Louisiana plantations that remained little changed since slavery, and who constantly
struggled to make ends meet in raising their children in poverty in segregated Baton Rouge; that
Petitioner was raised by a father, an alcoholic, who was a violent man who hit, pushed, and
threatened his wife when he was drunk. (SUMF ¶ 18 (citing Doc. 120 at 232–56.).)
In its Memorandum in Opposition to Petition for Writ of Habeas Corpus, respondent
alleged that in this penalty phase ineffective assistance of counsel claim “[P]etitioner goes way
beyond what he presented to the state courts for consideration of this claim below. As such, he
should not be permitted to alter the habeas record by including items and discussions that he did
not present to the state courts.” (SUMF ¶ 19 (citing Doc. 129 at 151).)
2. Judge Brady’s Decisions
The district court initially denied habeas relief on all claims. (SUMF ¶ 20 (citing Doc. 135
at 1.) However, following the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1, 132 Sc.
1309 (2012), Petitioner filed a timely motion pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure to alter or amend the judgment denying the petition with respect to Claim XI-C. (SUMF
¶ 20.) While acknowledging that the penalty phase ineffectiveness Claim XI-C was not fairly
presented to the Louisiana state courts and, thus, was procedurally defaulted, Petitioner argued that
this was no barrier to review by the federal courts because state post-conviction counsel Gisleson
had failed to provide effective representation in state post-conviction proceedings, thereby
excusing any procedural default under Martinez. (SUMF ¶ 20.) Petitioner also argued that the
procedural default should be excused because the state refused to provide the requested necessary
funding for mitigation and other expert assistance in state post-conviction proceedings, despite
post-conviction counsel’s request for funding from multiple sources, including the state

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postconviction court, such that the state corrective process was ineffective to protect petitioner’s
rights, citing to 28 U.S.C. § 2254(b)(1)(B)(ii). (SUMF ¶ 20 (citing Doc. 141 at 22-24).)
The district court granted the Rule 59(e) motion, concluding that the evidence alleged in
support of the penalty phase ineffectiveness claim was materially and significantly different and
stronger than what was presented to the state court. (SUMF ¶ 21 (citing Doc. 156 at 3).) As a
result, Judge Brady concluded that Claim XI-C had not been fairly presented to the state courts
during state post-conviction proceedings and was therefore procedurally barred. (SUMF ¶ 21
(citing Doc. 156 at 3-4).) Judge Brady also concluded that petitioner’s procedural default would
not bar merits review if petitioner could show cause and prejudice as contemplated in Martinez v.
Ryan, 132 S. Ct. 1309 (2012). (SUMF ¶ 21 (citing Doc. 156 at 4-6).) In reaching this conclusion,
Judge Brady stated the following:
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.
(Doc. 156 at 5.) Judge Brady ordered that the Court would handle both inquiries – initial-review
counsel’s ineffectiveness and trial counsel’s penalty phase ineffectiveness – at one hearing. (SUMF
¶ 21 (citing Doc. 156 at 6).)
A federal evidentiary hearing was held before Judge Brady on January 12-13, 2015; and
March 18-19, and 23, 2015. (SUMF ¶ 22.)

Petitioner presented the testimony, along with

supporting documentation, of pro bono state post-conviction counsel Soren Gisleson; Louisiana
state post-conviction expert Gary Clements, Director of CPCPL; Wessinger family members and
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friends Joseph Kelly, Troy Wessinger, Leroy Helire, Jr., John Williams, Demetric Alexander, and
Sharon Alexander; neuropsychatrist Dr. George Woods; mitigation expert Russell Stetler; and
capital defense expert Baton Rouge attorney Michele Fournet. (SUMF ¶ 22.) Respondent did not
present any witnesses. (SUMF ¶ 22.)
On July 27, 2015, Judge Brady issued an order granting Petitioner’s claim for habeas relief
based on Claim XI-C (ineffective assistance of trial counsel at the penalty phase in violation of the
Sixth Amendment). (Doc. 216 at 15.) Judge Brady first found:
Both experts [who testified at the hearing], Mr. Stetler and Mr. Clements,
emphasized the importance of conducting a mitigation investigation, either with the
aid of a mitigation specialist or by counsel conducting an investigation beyond the
trial court record. It is undisputed that Mr. Gisleson conducted no investigation into
mitigation evidence and did not hire a mitigation specialist during his time as
counsel for Petitioner’s post-conviction proceedings. Mr. Gisleson may have
preserved the claim of ineffective assistance of trial counsel at the penalty phase
simply by asserting it in his various amended petitions, but his failure to conduct
mitigation investigation prevented him from providing any support for these
claims. This lack of a mitigation investigation to even determine the merit of
Petitioner’s claim of ineffective assistance of trial counsel at the penalty phase is
below the standard for capital post-conviction proceedings. Under the guidance of
the Fifth Circuit in Canales v. Stephens, 765 F.3d 551, 569 (5th Cir. 2014), this
Court finds that Petitioner’s state initial-review counsel’s performance fell below
an “objective standard of reasonableness” by failing to conduct any mitigation
investigation, particularly when the underlying claim is one of ineffective
assistance of trial counsel at the penalty phase.
(Doc. 216 at 7.) Turning to the issue of whether “the underlying claim [was] a ‘substantial claim
of ineffective assistance at trial[,]’ Martinez, 132 S. Ct. at 1320,” (Doc. 216 at 7), Judge Brady
concluded, “Based on what Mr. Hecker’s acknowledged shortcomings in preparing for the penalty
phase of Petitioner’s trial, this Court finds that the underlying ineffective assistance of counsel at
the penalty phase claim has merit and satisfies the ‘substantial’ element of Martinez.” (Doc. 216
at 9.) Judge Brady then concluded:

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This Court has determined that IRC was ineffective in pursuing a substantial claim.
Therefore, Martinez provides the equitable remedy of having the “cause” element
under Coleman satisfied. The Court next asks whether Petitioner can demonstrate
“actual prejudice” as a result of IRC’s failure to exhaust the substantial underlying
claim. Coleman [v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2565 (1991)]. With
regard to the initial review proceeding, it is clear that Mr. Gisleson’s ineffectiveness
in failing to conduct any mitigation investigation caused actual prejudice to
Petitioner’s habeas claim of ineffective assistance of trial counsel at the penalty
phase.
(Doc. 216 at 9.)
Judge Brady next explained that “[t]he equitable holding of Martinez does not decide
Petitioner’s underlying claim for habeas relief. Instead, in the interest of equity, it allows this
federal habeas court to consider a federal habeas claim that would have otherwise been
procedurally defaulted.” (Doc. 216 at 9.) Judge Brady next analyzed Mr. Heckler’s performance
and concluded:
Mr. Hecker’s did not conduct a mitigation investigation. He did not provide
anything more than a large number of unprepared witnesses at the penalty phase of
trial. None of this was done as part of any strategy according to Mr. Hecker. Mr.
Hecker’s representation of Petitioner at the penalty phase was deficient and fell
below the objectively reasonable norms of capital counsel at a penalty phase.
(Doc. 216 at 12.)
Judge Brady then addressed whether “Mr. Hecker’s deficient performance at the penalty
phase of trial prejudiced Petitioner such that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Doc.
216 at 12 (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).) Judge Brady reviewed
all of the witnesses presented at the hearing, almost all of whom had not been “previously
contacted or interviewed regarding Petitioner for purposes of mitigation.” (Doc. 216 at 14.) Judge
Brady concluded:

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The question remains, had these witnesses been contacted and had a mitigation
investigation been done to reveal these lay and expert opinions, is there a reasonable
probability that the result of the sentencing proceeding would have been different?
The Court does not consider the question before it lightly. After considering the
mitigation evidence presented at the evidentiary hearing before us, which was not
presented to the sentencing jury, this Court finds there is a reasonable probability
that the evidence of Petitioner’s brain damage and other impairments, as well as his
personal and family history would have swayed at least one juror to choose a life
sentence.
(Doc. 216 at 14–15.)

Judge Brady thus granted “Petitioner’s claim for habeas relief based on

ineffective assistance of trial counsel at the penalty phase in violation of the Sixth Amendment.”
(Doc. 216 at 14.)
Critically, Judge Brady issued the following Judgment:
For reasons assigned in the record,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petitioner for
writ of habeas corpus is hereby GRANTED as to Claim XI-C (Penalty Phase
Ineffective Assistance of Counsel) of the Amended Petition for Writ of Habeas
Corpus (doc. 120), the death sentences are vacated and this matter is remanded to
the 19th Judicial District Court for a new penalty phase trial not inconsistent with
this Court’s ruling. All other claims are denied.
(Doc. 217 at 1 (emphasis added).)
3. The Fifth Circuit’s Decision
The Fifth Circuit reversed. (Doc. 230 at 3.) The appellate court provided an extensive
recitation of the facts; relevant here, the circuit court described Soren Gisleon’s post-conviction
work in-part as follows:
Gisleson moved for “funding for any and all types of investigation.” While the
motion for funds was pending, he asked the Louisiana Indigent Defense Assistance
Board (“LIDAB”), the Louisiana Crisis Assistance Center (“LCAC”), the East
Baton Rouge Indigent Defense Board, and the Capital Post-Conviction Project of
Louisiana (“CPCPL”) for funding or assistance, but the organizations all denied his
requests. CPCPL referred him to mitigation specialist Deanne Sandel. Sandel
provided Gisleson with an affidavit regarding the time, ethical obligations,

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investigation, and assistance needed to represent Wessinger in the state postconviction proceedings.
The state post-conviction court denied his motion for funds. Gisleson moved to
continue the deadline to file the amended petition. Although the state postconviction court initially denied the motion, it eventually gave him a brief
continuance.
(Doc. 230 at 4–5.)
Turning to the analysis, the Fifth Circuit stated, “The State raises several arguments on
appeal. Because we conclude that the district court erroneously determined that Gisleson’s initialreview representation of Wessinger was deficient, we address only that argument.” (Doc. 230 at
7.) The appellate court explained:
The district court found that Gisleson’s “performance fell below an ‘objective
standard of reasonableness’ by failing to conduct any mitigation investigation,
particularly when the underlying claim is one of ineffective assistance of trial
counsel at the penalty phase.” The district court determined that Gisleson was
deficient because he did not “hire a mitigation specialist to do a social history or
mitigation investigation,” “conduct [his] own mitigation investigation,” or “consult
any mental health experts or any other experts.” The district court relied on the
testimony of two experts, who testified that Gisleson “did not perform the thorough
mitigation investigation required under professional norms” and that a death
penalty team should “include[] two attorneys, . . . a mitigation specialist, and a
paralegal.”
We hold that the district court erred. “[C]onsidering all the circumstances” and
“evaluat[ing] the conduct from [Gisleson’s] perspective at the time,” as we must,
we conclude that Gisleson’s performance in raising and developing Wessinger’s
claim for ineffective assistance of trial counsel at the penalty phase was not
deficient. Strickland, 466 U.S. at 688–89.
(Doc. 230 at 8–9.) The Fifth Circuit concluded:
The district court’s decision instead focused on Gisleson’s “failure to conduct
mitigation investigation [which] prevented him from providing any support” for
Wessinger’s claim for ineffective assistance of counsel at the penalty phase. We
disagree. The state post-conviction court denied Gisleson’s motion for funds “for
any and all types of investigation.” Gisleson also repeatedly reached out to various
organizations for funding or assistance, and he was repeatedly denied. Gisleson did
12

not hire a mitigation specialist or consult experts because the state post-conviction
court did not grant his motion for funds, not because of any deficiency on
Gisleson’s part. He was thorough in his attempt to secure funds or other assistance,
and ultimately he managed to secure $5,000 from his firm, which he paid to Recer
for her help investigating and filing the second amended petition.
Wessinger previously acknowledged to the district court that he did not develop
evidentiary support for his claim during state post-conviction proceedings because
of decisions by the state post-conviction court, not because Gisleson was deficient.
...
Even after the evidentiary hearing, Wessinger argued that Gisleson did not develop
the claim in state court “because of lack of money, lack of expertise, lack of help,
lack of experience and lack of time.” Wessinger has not demonstrated that a more
experienced attorney would have obtained funding, assistance, or additional time
from the state post-conviction court. That Wessinger did not present evidentiary
support of his claim to the state postconviction court is not attributable to Gisleson’s
inexperience or any particular error, but rather to the state post-conviction court’s
decisions to deny a hearing, discovery, and funds—decisions which are entitled to
deference and which Wessinger does not challenge before this court.
Gisleson’s performance in raising and developing Wessinger’s claim for ineffective
assistance of trial counsel at the penalty phase was not deficient. Furthermore,
Wessinger failed to satisfy the prejudice inquiry, as he cannot show Gisleson’s
particular unreasonable errors, rather than decisions by the state post-conviction
court, “actually had an adverse effect on the defense.” Strickland, 466 U.S. at 693.
The district court therefore erred in concluding that Wessinger’s initial-review
counsel was ineffective.
(Doc. 230 at 9–11.)
II.

Summary Judgment Standard
“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to

summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (citing Rule 11 of the Rules Governing § 2254 Cases;
Fed. R. Civ. P. 81(a)(2)). Under Rule 56, “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). If the mover bears his burden of showing that there is
13

no genuine issue of fact, “its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with
‘specific facts showing that there is a genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348 (1986) (internal citations omitted).
The non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions,
or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations and internal quotations omitted). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”
Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in favor
of the nonmoving party could arrive at a verdict in that party’s favor, the court must
deny the motion.
International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
“[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or
as a defendant he is asserting an affirmative defense, he must establish beyond peradventure [(that
is, beyond doubt)] all of the essential elements of the claim or defense to warrant judgment in his
favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); peradventure, MERRIAMWEBSTER’S

DICTIONARY

(2019),

available

at

https://www.merriam-

webster.com/dictionary/peradventure. Phrased another way, “[w]here the summary judgment
movant bears the burden of proof at trial, the summary judgment evidence must affirmatively
establish the movant's entitlement to prevail as a matter of law.” Universal Sav. Ass'n v.
McConnell, 14 F.3d 52 (5th Cir. 1993) (unreported).

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III.

Discussion
A. Introduction
Preliminarily, the Court finds that an overview of the exhaustion issues underlying this

motion will be helpful. As Judge Brady found in his Ruling and Order on Petitioner’s Rule 59(e)
motion:
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). . . .
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.
(Doc. 156 at 3–4.) Judge Brady similarly said in his order granting the petition for writ of habeas
corpus as to Claim XI-C (Penalty Phase Ineffective assistance of Counsel):
This Court’s previous ruling determined Petitioner’s remaining habeas claim is
procedurally defaulted (doc. 156, at 4). The Court reached this determination based
15

on the Coleman v. Thompson rule: “[i]n all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is barred.” 501 U.S. 722,
750, 111 S. Ct. 2546, 2565 (1991). In Coleman, the Court went on to limit the rule
barring federal habeas review of such defaulted claims when the prisoner can
demonstrate (1) cause for the default and (2) actual prejudice as a result of the
failure to exhaust the claims in state court. Id.
Prior to the Supreme Court’s ruling in Martinez v. Ryan, 132 S. Ct. 1309 (2012),
the negligence of an attorney in post-conviction proceedings did not suffice as
“cause” under Coleman. However, Martinez served as a significant exception when
it held the following:
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. This Court has already noted the jurisprudential rule in Louisiana that
ineffective assistance claims are generally best suited for post-conviction
proceedings (doc. 156, at 4, citing State v. Hamilton, 699 So.2d 29, 31 (La. 1997)).
Martinez sets forth two more conditions that must be satisfied in order for the
procedurally defaulted claim to be heard by this federal habeas court: (1) IRC was
ineffective in the initial-review proceeding and (2) the underlying habeas claim of
IAC at penalty phase must be a substantial claim.
(Doc. 216 at 1–2.)
With those standards having been laid out, the Court turns to the instant motion. Petitioner
moves for three alternative grounds for relief. In the primary one, Petitioner seeks summary
judgment on the following grounds:
While, as a result of the Fifth Circuit’s ruling, cause and prejudice for excusing the
procedural default of Wessinger’s meritorious ineffectiveness claim can no longer
be based on state post-conviction counsel’s ineffectiveness, it can and should be
based on the repeated failure of the state post-conviction process and policies to
protect Wessinger’s rights and provide him due process and equal protection as a
result of the denial of state post-conviction counsel’s repeated efforts, directed to
multiple state and state-funded entities and the state post-conviction court, to obtain
16

the necessary funds and assistance to develop ineffectiveness claims in state
postconviction.
(Doc. 234 at 3.) The other two alternative grounds will be discussed below.
B. The Mandate Rule Issue
1. Parties’ Arguments
a. Petitioner’s Original Memorandum (Doc. 234-1)
Petitioner opens by arguing that the law of the case doctrine only applies to questions that
were “actually decided, rather than all questions in the case that might have been decided but were
not.” (Doc. 234-1 at 15 (citation omitted).) Decisions are implicitly decided if they are fully
briefed and “necessary predicates to the court’s ability to address the issue or issues specifically
discussed[,]” but if a issue was not briefed on appeal, it was not decided. (Doc. 234-1 at 15
(citations omitted).) Similarly, an issue is not waived if the appellee did not fully brief it in support
of his affirming the district court judgment. Moreover, a denial of request for rehearing is not law
of the case. Petitioner also asserts that the mandate rule—which purportedly says a district court
“cannot vary [the mandate] or examine it for any other purpose than execution”—is “only
controlling as to matters within its compass.” (Doc. 234-1 at 16 (citations and quotations omitted).)
The district court can decide matters left open by the mandate.
Here, according to Petitioner, the Fifth Circuit based its conclusion only on the fact that
Judge Brady erred in finding that Gisleson was ineffective in state post-conviction proceedings.
Petitioner explains:
Under the law of the case, Gisleson’s ineffectiveness cannot provide cause under
Martinez for Wessinger’s procedural default of his meritorious, but procedurally
defaulted claim of penalty phase trial counsel’s ineffectiveness. However, the panel
did not reverse the district court’s rulings that Wessinger’s Claim XI-C penalty
phase ineffectiveness claim filed in his amended petition properly related back to
and amended the original timely habeas petition and was a meritorious claim of
violation of Wessinger’s Sixth Amendment rights for which habeas relief should
17

be granted, all district court rulings which were briefed and argued on appeal and
which remain intact. Thus, the law of the case doctrine does not prevent this Court
from considering in the present motion, which relies upon cause for excusing the
procedural default of Wessinger’s meritorious Sixth Amendment claim of
ineffective assistance of penalty phase trial counsel based upon the inadequacies of
the state court process and policies, which was not reached by the district court nor
decided by the Fifth Circuit.
(Doc. 234-1 at 16–17.) The same reasoning applies to the mandate rule; the fact that the Fifth
Circuit simply “reversed” Judge Brady and did not say “reversed and remanded” does not warrant
a different result. Petitioner concludes:
The Fifth Circuit panel reversed Judge Brady’s ruling on the limited issue of cause
under Martinez, and on no other basis. The appellate court’s judgment of reversal
did not order the dismissal the habeas petition or otherwise rule on the merits of the
habeas petition so as to bar further proceedings in this Court. Thus, authority is now
vested in this Court to consider the basis for excusing the procedural default of
petitioner’s ineffectiveness claim set forth in this motion and not previously
addressed by this Court or the Fifth Circuit.
(Doc. 234-1 at 18.)
b. Respondent’s Opposition (Doc. 244)
Respondent begins with a lengthy recitation of the procedural history. Respondent argues
that, after Judge Brady’s Rule 59(e) ruling, “[b]oth parties focused on the applicability of the
Martinez case, and neither addressed any alternative theories for proving cause and prejudice,
because Judge Brady’s ruling was limited to the Martinez claim and necessarily excluded any other
proffered basis for establishing cause and prejudice.” (Doc. 242-1 at 4.) Respondent then
highlights that Petitioner purportedly said in briefing before the district court that his claim was
“ineffective assistance of his initial review counsel at the state level, as recognized by the Supreme
Court in Martinez[.]” (Doc. 242-1 at 5 (quoting Doc. 156 at 4–5).) Respondent then reviews the
Fifth Circuit decision, emphasizing that Petitioner “failed to establish cause (initial-review

18

counsel’s deficient performance) or prejudice (counsel’s errors had an adverse effect on the
defense).” (Doc. 242-1 at 6.) After all of this, Respondent argues:
Based on this finding, the Fifth Circuit has already determined the issue related to
cause and prejudice which petitioner attempts to re-litigate in the instant motions.
Further, the net result of the Fifth Circuit’s ruling was one of two possible results.
First, the district court was incorrect when it vacated its initial ruling on the merits,
in which case, the original judgment on the merits remains in effect. Alternatively,
Judge Brady’s ruling that this claim is procedurally barred is still in effect, and
petitioner has failed to establish cause and prejudice to overcome that procedural
bar and the jurisprudence related to the procedural bar.
(Doc. 242-1 at 6.)
Respondent argues that Petitioner “ignores” Judge Brady’s ruling, “which established the
only basis available to petitioner by which the federal courts could consider his procedurally
defaulted claim,” and “misinterprets” the Fifth Circuit’s decision, which essentially reinstates
Judge Brady’s prior rulings finding Petitioner’s claims procedurally barred. (Doc. 244 at 8.)
Respondent emphasizes that, though Judge Brady found questions of fact and law on the issue of
“ineffectiveness through denial of funds,” petitioner did not brief any of these issues. (Doc. 244 at
9.) Further, the Fifth Circuit’s ruling precludes any second review by this Court. Respondent
asserts, “Petitioner should not be allowed to argue a basis for cause and prejudice that he has either
failed to raise previously or has waived by abandonment.” (Doc. 244 at 13.)

Petitioner never

established this as a viable ground for overcoming the procedural bar, but, to the extent he raised
it, he did “not pursue it” but rather “relied on the Martinez method until that failed.” (Doc. 244 at
13.)
According to Respondent, Petitioner argues that the “procedural default of Claim XI-C can
be excused because the state refused to provide the requested necessary funding for mitigation and
other expert assistance . . . such that the state corrective process was ineffective to protect
petitioner’s rights[,]” but Respondent attacks this argument (Doc. 244 at 14.) First, according to
19

Respondent, Petitioner failed to demonstrate how state corrective process could satisfy the cause
and prejudice requirements at his first evidentiary hearing. Second, Judge Brady’s ruling
demonstrates that he was aware of Petitioner’s alternative theory, yet Petitioner did not discuss the
issue in pre-hearing or post-hearing briefing; he instead relied on the Martinez claim. Having
failed to brief the issue, the Court should deem it waived or find that Judge Brady “implicit[ly]
reject[ed]” it. (Doc. 244 at 15.) Respondent then distinguishes Petitioner’s cases which allegedly
find that a state’s systematic failure to provide relief can excuse an unexhausted claim.
c. Petitioner’s Reply (Doc. 245)
Petitioner argues that Judge Brady’s rulings on the Rule 59(e) motion and in which he
granted habeas relief neither “referenced, much less rejected, the failure of the state corrective
process as a basis for cause and prejudice.” (Doc. 245 at 2.)

Further, Judge Brady’s opinion

granting habeas relief specifically mentioned the fact that state post-conviction counsel sought
funding and assistance, “all to no avail.” (Doc. 245 at 2 (citing Doc. 216 at 3–4).) Judge Brady’s
decisions do not constitute a “decision, implicit or otherwise, that the extraordinary circumstances
and policies in existence in Louisiana at the time – that denied state post-conviction counsel the
necessary resources and tools to represent Wessinger effectively – were faultless or that the state
corrective process was effective to protect Wessinger’s rights.” (Doc. 245 at 2.) Further, “res
judicata does not apply in federal habeas corpus[.]” (Doc. 245 at 2.) Petitioner concludes, “The
State of Louisiana should not be allowed, through its own processes and policies, to make it
impossible for state post-conviction counsel to do his job and then hold petitioner accountable with
his life for state post-conviction counsel’s unavoidable failures.” (Doc. 245 at 3.)

20

2. Applicable Law
a. Law of the Case Doctrine
“ ‘The law of the case doctrine, as formulated in this circuit, generally precludes
reexamination of issues of law or fact decided on appeal, either by the district court on remand or
by the appellate court itself on a subsequent appeal.’ ” Alpha/Omega Ins. Servs., Inc. v. Prudential
Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (quoting Todd Shipyards Corp. v. Auto Transp.,
763 F.2d 745, 750 (5th Cir. 1985)). “As [the Fifth Circuit has] noted, it is premised ‘on the salutary
and sound public policy that litigation should come to an end.’ ” Id. (quoting Terrell v. Household
Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir. 1974) (quoting White v. Murtha, 377 F.2d 428,
431 (5th Cir. 1967))).
“The doctrine's reach does have its limits.” Id. “For example, unlike res judicata, the law
of the case doctrine applies only to issues that were actually decided, rather than all questions in
the case that might have been decided, but were not.” Id. (citing Morrow v. Dillard, 580 F.2d 1284,
1290 (5th Cir. 1978)). “But, the issues need not have been explicitly decided; the doctrine also
applies to those issues decided by ‘necessary implication.’ ” Id. (quoting In re Felt, 255 F.3d 220,
225 (5th Cir. 2001)). “In other words, even when issues have not been expressly addressed in a
prior decision, if those matters were ‘fully briefed to the appellate court and . . . necessary
predicates to the [court's] ability to address the issue or issues specifically discussed, [those issues]
are deemed to have been decided tacitly or implicitly, and their disposition is law of the case.’ ”
Id. (quoting In re Felt, 255 F.3d at 225).
Additionally, the Fifth Circuit’s “denial of a motion for panel rehearing does not amount
to a decision on the merits.” Alpha/Omega Ins. Servs., 272 F.3d at 281 (citing Fernandez v.
Chardon, 681 F.2d 42, 51 n.7 (1st Cir. 1982) (“[T]he denial of a petition for rehearing can have

21

no greater precedential effect than the denial of a petition for certiorari, which is to say none.”),
aff'd, 462 U.S. 650, 103 S. Ct. 2611, 77 L. Ed. 2d 74 (1983); Crider v. Keohane, 526 F. Supp. 727,
728 (W.D. Ok. 1981) (“[T]he failure of the Petition for Rehearing does not imply any judgment
on the merits of this issue.”)).
“The law of the case doctrine, however, is an exercise of judicial discretion which ‘merely
expresses the practice of courts generally to refuse to reopen what has been decided,’ not a limit
on judicial power.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quoting Messinger v.
Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L.Ed. 1152 (1912); United States v. Matthews, 312
F.3d 652, 657 (5th Cir. 2002) (“Matthews II”)). “The doctrine, therefore, ‘is not “inviolate,” ’ but
rather permits an appellate court or a district court on remand to deviate from a ruling made by a
court of appeal in an earlier stage of the same case in certain exceptional circumstances.” Id.
(quoting Matthews II, 312 F.3d at 657 (citing United States v. Becerra, 155 F.3d 740, 752 (5th Cir.
1998))). “Three exceptions to the law of the case doctrine permit a court to depart from a ruling
made in a prior appeal in the same case: ‘(1) The evidence at a subsequent trial is substantially
different; (2) there has been an intervening change of law by a controlling authority; and (3) the
earlier decision is clearly erroneous and would work a manifest injustice.’ ” Id. at 320 n.3 (quoting
Matthews II, 312 F.3d at 657 (quoting Becerra, 155 F.3d at 752-53)).
b. The Mandate Rule
“These principles apply equally to the mandate rule, ‘which is but a specific application of
the general doctrine of law of the case.’ ” Lee, 358 F.3d at 321 (quoting Matthews II, 312 F.3d at
657). “Absent exceptional circumstances, the mandate rule compels compliance on remand with
the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided
by the appellate court.” Id. (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).

22

“Moreover, the rule bars litigation of issues decided by the district court but foregone on appeal or
otherwise waived, for example because they were not raised in the district court.” Id. (citing Bell,
988 F.2d at 250). “Accordingly, a lower court on remand ‘ “must implement both the letter and
the spirit of the appellate court's mandate and may not disregard the explicit directives of that
court.” ’ ” Id. (quoting Matthews II, 312 F.3d at 657 (quoting Becerra, 155 F.3d at 753) (internal
alterations and quotation marks omitted))). “In implementing the mandate, the district court must
‘tak[e] into account the appellate court's opinion and the circumstances it embraces.’ ” Id. (quoting
Sobley v. Southern Natural Gas Co., 302 F.3d 325, 333 (5th Cir. 2002) (citing Tollett v. City of
Kemah, 285 F.3d 357, 364 (5th Cir. 2002) (internal citation omitted))). To determine whether this
Court can, on remand, address the issues currently before it, “this court must determine the scope
of [the Fifth Circuit] mandate in [its] opinion” reversing Judge Brady’s granting of the petition for
writ of habeas corpus. Lee, 358 F.3d at 321 (citing Matthews II, 312 F.3d at 658; Moore v.
Anderson, 222 F.3d 280, 283 (7th Cir. 2000) (stating that a “careful reading of the reviewing court's
opinion” is required “[t]o determine what issues were actually decided by the mandate”)).
Critically, “the [mandate] rule bars litigation of issues decided by the district court but
foregone on appeal or otherwise waived, for example because they were not raised in the district
court.” Lee, 358 F.3d at 321 (citing Bell, 988 F.2d at 250). “Accordingly, a district court cannot
‘reconsider its own rulings made before appeal and not raised on appeal.’ ” United States v.
Bazemore, 839 F.3d 379, 385 (5th Cir. 2016) (per curiam) (quoting 18B Charles Alan Wright et
al., Federal Practice and Procedure § 4478.3 (2d ed. 2016)). That is, “[o]n remand, the only
issues properly before the district court were those that arose from the remand.” United States v.
Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing Lee, 358 F.3d at 323). “ ‘All other issues not
arising out of this court's ruling and not raised in the appeals court, which could have been brought

23

in the original appeal, are not proper for reconsideration by the district court below.’ ” Id. (quoting
Lee, 358 F.3d at 323 (emphasis in Lee)).
Numerous cases illustrate how the mandate rule applies. For instance, in Bell, defendant
was sentenced as an armed career criminal. Bell, 988 F.2d at 249. At the sentencing, defendant
made no objection to the fact that he had been convicted “of a half-dozen violent crimes listed in
the PSI Report,” and, indeed, statements by defendant and defense counsel ratified the accuracy
of the PSI. Id. Defendant was sentenced in excess of 30 years, and he appealed. Id. The First
Circuit reversed, finding that “where the offense of conviction is the offense of being a convicted
felon in knowing possession of a firearm, the conviction is not for a ‘crime of violence’ and that,
therefore, the career offender provision of the federal sentencing guidelines does not apply.” Id.
On remand, defendant challenged for the first time his prior convictions and his status under the
Armed Career Criminal Act (“ACCA”). Id. The district court ruled the objection untimely, and
defendant again appealed. Id. at 249-50.
Looking at the mandate rule, the Second Circuit affirmed, explaining:
It is readily evident, therefore, that neither the letter nor the spirit of our mandate is
consistent with the turnaround that Bell proposes today: starting the sentencing
pavane from scratch following remand. Rather than obligating the district court to
examine the validity of Bell's previous convictions, our mandate, read in the most
plausible manner, constrained the district court from considering on remand a
collateral challenge that defendant had, from all appearances, deliberately
bypassed.
The black letter rule governing this point is that a legal decision made at one stage
of a civil or criminal case, unchallenged in a subsequent appeal despite the
existence of ample opportunity to do so, becomes the law of the case for future
stages of the same litigation, and the aggrieved party is deemed to have forfeited
any right to challenge that particular decision at a subsequent date. See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.
Cir. 1987); see also United States v. Duchi, 944 F.2d 391, 393 (8th Cir. 1991)
(standing for the proposition that arguments in the alternative, like other challenges,
must be brought before an appellate court lest an ensuing ruling become the law of
the case). Abandoning this prudential principle would threaten the important policy
24

considerations underlying the law of the case doctrine, such as “stability in the
decisionmaking process, predictability of results, proper working relationships
between trial and appellate courts, and judicial economy.” United States v. RiveraMartinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S. Ct. 184,
116 L. Ed. 2d 145 (1991).
Bell, 988 F.2d at 250. The Second Circuit concluded:
The law of the case doctrine dictates that all litigation must sometime come to an
end. See Arizona v. California, 460 U.S. 605, 619, 103 S. Ct. 1382, 1391, 75 L. Ed.
2d 318 (1983). Here, appellant has provided us with no valid reason to depart from
this policy and overturn the district court's refusal to resuscitate an issue previously
agreed upon and decided in the case.
Bell, 988 F.2d at 252.
Bell was cited with approval in Lee, where the Fifth Circuit found that a mandate did not
“prohibit[] the district court from reconsidering and imposing a discretionary upward departure[.]”
Id. at 320. The appellate court based this reasoning on the fact that the “district court reconsidered
an unappealed sentencing issue-a discretionary upward departure- that could not have been raised
in the initial appeal.” Id. at 323 (emphasis in original). Further, the issue was not waived; “the
record in this case amply justifies the government’s earlier silence quite simply because the
enhancement at issue was not appealable in the initial appeal.” Id. at 324. “[O]ur mandate rule
does not require that a party raise unappealable sentencing issues in anticipation of every possible
contingency that may make such issues germane at a later stage of the proceedings.” Id. Lastly,
the issue “arose out of the correction of the sentence [ordered by the Fifth Circuit],” id. at 320 n.3,
which is to say it was “made newly relevant by the court of appeal’s decision-whether by the
reasoning or the result,” id. at 326 (alterations, quotations, and citations omitted).
Griffith in turn relied on Lee to find that the mandate rule barred some, though not all,
issues. Griffith, 522 F.3d at 610–11. The Fifth Circuit first explained:
On remand, the only issues properly before the district court were those that arose
from the remand. [Lee, 358 F.3d at 323]. “All other issues not arising out of this
25

court's ruling and not raised in the appeals court, which could have been brought in
the original appeal, are not proper for reconsideration by the district court below.”
Id. It follows that an objection to a sentence must be appealed for the district court,
on remand, to have authority to revisit it.
Id. at 610. The appellate court next found that several objections “fit squarely within the waiver
doctrine announced in Lee.” Id. The circuit court explained:
Neither defendant has demonstrated why he was unable to appeal his issue in the
initial appeal. Each did appeal the leadership enhancements, which we reversed.
[(citation omitted)]. It does not follow that because they appealed one aspect of the
sentence, they preserved every other objection for review on remand. In fact,
because they had already objected in the district court on those very grounds, they
had every incentive and opportunity to appeal the sentence on those grounds as
well. Because they did not, the arguments are waived.
Id. Defendant also “waived the issue of a decrease for his limited participation in the conspiracy,
because he did not raise it in” the Fifth Circuit on the first appeal.” Id. “The issue is deemed
waived on this appeal as well, unless ‘there was no reason to raise it in the initial appeal.’ ” Id.
(quoting Lee, 358 F.3d at 324). Here, “[t]here were certainly reasons to raise the issue of a decrease
in the initial appeal[,] so “[t]he arguments presented by [those defendants were] waived according
to the mandate rule announced in Lee.” Id. at 610-11. However, the mandate rule did not bar two
other defendants from requesting decreases; the appellate court explained, “Because neither
defendant's prospective conspiracy sentences was germane to the original appeal, wholly because
there was nothing related to sentencing to appeal, the mandate rule does not apply.” Id. at 611.
Lastly, in United States v. Bagley, 639 F. App'x 231 (5th Cir. 2016) (per curiam), the Fifth
Circuit had “vacated the district court's restitution order and remanded for modification consistent
with [its] opinion.” Id. at 231. “On remand, the district court resentenced [defendant] de novo and
imposed a fine in lieu of restitution.” Id. Relying on United States v. Marmolejo, 139 F.3d 528,
531 (5th Cir. 1998) (which was examined closely by the Lee court), the Fifth Circuit found that
the district court violated the rule of mandate, explaining:
26

[T]he district court initially decided not to impose a fine due to Bagley's inability
to pay. The issue of a fine was not raised on appeal and our prior opinion did not
discuss it. While the district court may have thought that restitution was closely
related to the issue of a fine, our decision did not open the door for the court to
reconsider an issue not raised by the parties or ruled on by this Court on appeal.
Id. at 233.
3. Application
Though the Court is sympathetic to Petitioner’s position, it is bound to apply the mandate
rule as interpreted by the Fifth Circuit. Petitioner’s motion must thus be denied.
The Court finds that the decision turns on Judge Brady’s judgment and the Fifth Circuit
opinion. Judge Brady specifically granted the petition for writ of habeas corpus solely “as to Claim
XI-C (Penalty Phase Ineffective Assistance of Counsel)” but expressly stated, “All other claims
are denied.” (Doc. 217.)

Thus, Judge Brady rejected “[a]ll other claims,” including the

“ineffectiveness through denial of funds theory” that was raised in the Rule 59 motion but not fully
litigated at the hearing. Petitioner did not appeal that part of the judgment despite having the
ability to do so. Indeed, Petitioner had every reason to appeal that part of Judge Brady’s judgment,
as he needed to preserve the issue in the event that the Fifth Circuit reversed the granting of the
habeas petition. And the appeal could have been as simple as arguing that Judge Brady was
premature to dismiss this alternate ground given the fact that the record had not been developed
on the issue.
The Fifth Circuit ultimately did reverse Judge Brady, focusing solely on the conclusion
that “the district court erroneously determined that Gisleson’s initial-review representation of
Wessinger was deficient” (Doc. 230 at 7) and “REVERS[ING] the district court’s grant of habeas
relief.” (Doc. 230 at 11.) Again, the Fifth Circuit did not address the ineffective state corrective
process now advanced by Petitioner precisely because it was not raised by him on appeal, despite

27

compelling reasons to do so. And, further, the letter and spirit of the Fifth Circuit’s decision was
to reverse solely on the above ground and to leave in place Judge Brady’s judgment denying relief
for “[a]ll other claims[.]” (Doc. 217.)
Consequently, this Court finds that, under Fifth Circuit case law, it is barred by the mandate
rule from considering Petitioner’s latest theory. See Marmolejo, 139 F.3d at 531 (affirming district
court’s refusal “to hear new evidence presented on the issue of acceptance of responsibility and
obstruction of justice” because “the resentencing court can consider whatever this court directs-no
more, no less. All other issues not arising out of this court's ruling and not raised before the appeals
court, which could have been brought in the original appeal, are not proper for reconsideration by
the district court below.”); United States v. Skelton, 252 F.3d 1356 (5th Cir. 2001) (unpublished
per curiam) (affirming sentence because appellate court was “not persuaded that Skelton could not
have raised in his initial appeal the issue of whether affirmance of his conviction on less than all
counts required reconsideration of the determination that Skelton's offense substantially
jeopardized the soundness of Westheimer Bank.”); United States v. Alvarez, 575 F. App'x 522,
526 (5th Cir. 2014) (per curiam) (“The district court's interpretation of our remand was correct.
Consequently we will not consider Alvarez's objections to his PSR and Guidelines calculations
that could have been made at the time of his original sentencing but were not.”); Bagley, 639 F.
App'x at 233 (finding, where Fifth Circuit initially reversed imposition of restitution, that the
district court was barred on remand from imposing a fine because, “[w]hile the district court may
have thought that restitution was closely related to the issue of a fine, our decision did not open
the door for the court to reconsider an issue not raised by the parties or ruled on by this Court on
appeal”); Bazemore, 839 F.3d at 392 (“Bazemore objected that his proffer agreement precluded
the Government from using this information, but the district court expressly overruled that

28

objection. Bazemore failed to challenge that ruling when he appealed his first sentence. His failure
to do so bars him from making this argument now[,]” as “Bazemore had every reason to raise this
alleged error when appealing his first sentence.”); see also Bell, 988 F.2d at 250 (“The black letter
rule governing this point is that a legal decision made at one stage of a civil or criminal case,
unchallenged in a subsequent appeal despite the existence of ample opportunity to do so, becomes
the law of the case for future stages of the same litigation, and the aggrieved party is deemed to
have forfeited any right to challenge that particular decision at a subsequent date.”); cf. Lee, 358
F.3d at 323–26 (finding mandate rule was no bar when, unlike the instant case, “unappealed
sentencing issue . . . could not have been raised in the initial appeal” and was “made newly relevant
by the court of appeal’s decision-whether by the reasoning or the result” (emphasis in original));
General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 454 (5th Cir. 2007) (“Because GUS failed
to brief, and thus waived, any arguments against the Customer Defendants on appeal, the district
court's judgment finally disposed of any claims against those defendants. As a result, our remand
in the prior opinion [reversing summary judgment and remanding as to single claim against other
defendant] did not include any claims against the Customer Defendants. Therefore, we affirm the
magistrate judge's grant of summary judgment to the Customer Defendants.”). Petitioner’s motion
is thus denied.
C. Other Grounds for Relief
Petitioner also seeks, as alternatives, a federal evidentiary hearing on the issues of cause
and prejudice and for relief under Federal Rule of Civil Procedure 60(b)(6), which relieves a party
from a final judgment for “any other reason that justifies relief.” Respondent argues that Petitioner
already received one hearing and is not entitled to another. Further, Respondent asserts that the
Rule 60(b)(6) motion should be denied because, inter alia, it is untimely.

29

For the same reasons articulated above, the Court denies Petitioner’s alternative grounds
for relief. The Court finds that Petitioner is not entitled to a federal evidentiary hearing on cause
and prejudice, as, again, this is foreclosed by the mandate rule.
The same result is warranted as to Petitioner’s motion under Rule 60(b)(6). Preliminarily,
the Court agrees with Respondent that this motion is untimely. “A motion under Rule 60(b)(6)
must be made within a reasonable time, unless good cause can be shown for the delay.” Clark v.
Davis, 850 F.3d 770, 780 (5th Cir.), cert. denied, 138 S. Ct. 358, 199 L. Ed. 2d 266 (2017)
(citations and quotations omitted).

“Reasonableness turns on the ‘particular facts and

circumstances of the case.’ ” Id. (quoting Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d
1404, 1410 (5th Cir. 1994)). The Fifth Circuit “consider[s] ‘whether the party opposing the motion
has been prejudiced by the delay in seeking relief and . . . whether the moving party had some
good reason for his failure to take appropriate action sooner.’ ” Id. (quoting Lairsey v. Advance
Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976) (quoting 11 Wright & Miller, Federal Practice
& Procedure § 2866, at 228-29)). “[T]imeliness . . . is measured as of the point in time when the
moving party has grounds to make [a Rule 60(b)] motion, regardless of the time that has elapsed
since the entry of judgment.” Id. (citing First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d
117, 120 (5th Cir. 1992)).
Here, the Supreme Court denied the petition for writ of certiorari on March 6, 2018, and
Petitioner filed the instant motion on August 30, 2019. This delay is seventeen months. Petitioner
has provided no “good reason for his failure to take appropriate action sooner.” Clark, 850 F.3d at
780. The Court agrees with Respondent that, in this case, seventeen months is not “within a
reasonable time.” See Clark, 850 F.3d at 782 (finding delays of twelve and sixteen months were
untimely under Rule 60(b)(6)). As the Fifth Circuit stated in Clark:

30

This court and others have concluded that periods of delay similar to or shorter than
the period at issue here can constitute unreasonable delay under Rule 60(b). [See,
e.g., Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) (eight
months after change in law was untimely); Trottie v. Stephens, 581 Fed. Appx. 436,
438 (5th Cir. 2014) (per curiam) (three years from district court denial of petition
and over a year from denial of a COA not timely); Buck v. Thaler, 452 Fed. Appx.
423, 429-30 (5th Cir. 2011) (per curiam) (over a year after denial of certiorari and
no extenuating circumstances not within reasonable time); cf. Lewis v. Lewis, 326
Fed. Appx. 420, 420 (9th Cir. 2009) (mem.) (unpublished) (six-month delay
without any explanation not reasonable); Tredway v. Parke, 79 F.3d 1150, at *1
(7th Cir. 1996) (unpublished) (five-month delay was unreasonable when motion
only challenged court’s prior analysis).] In Tamayo v. Stephens, [740 F.3d 986, 991
(5th Cir. 2014) we affirmed the district court’s judgment, which held that a Rule
60(b) motion, filed nearly eight months after the pertinent change in decisional law,
was untimely. [Tamayo, 740 F.3d 986, 991 (5th Cir. 2014).] In Pruett v. Stephens,
the petitioner waited more than nineteen months after Trevino was decided to file
his Rule 60(b) motion. [Pruett, 608 Fed. Appx. at 186.] We concluded that the
district court did not abuse its discretion in holding the motion was not filed within
a reasonable time. [Id.]
Clark, 850 F.3d at 782 & nn.63–66. For the same reasons, the Court finds that Petitioner’s motion
for relief under Rule 60(b)(6) is untimely.
Nevertheless, even putting that aside, the Court finds that, given the above findings on the
mandate rule, relief under Rule 60(b)(6) is not warranted. On this additional ground, Petitioner’s
motion is denied.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Petitioner’s Motion for Summary Judgment, or, in the

Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for Relief
from Judgment (Doc. 234) filed by Petitioner Todd Kelvin Wessinger is DENIED.
Signed in Baton Rouge, Louisiana, on December 19, 2019.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
31
MIDDLE DISTRICT OF LOUISIANA