Wessinger v. Cain, et al

Filing 254

RULING AND ORDER granting in part and denying in part 248 Motion to Alter or Amend Judgment Denying 234 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, or, in the Alternative, to Grant Petitioner Habeas Relief on Claim XI-C. Signed by Judge John W. deGravelles on 9/10/2020. (KMW)

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 1 of 18

UNITED 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 Petitioner’s Motion to Alter or Amend Judgment
Denying 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, or, in the
Alternative, to Grant Petitioner Habeas Relief on Claim XI-C (Doc. 248) filed by Petitioner Todd
Kelvin Wessinger (“Petitioner”). Respondent the State of Louisiana (“the State”) opposes the
motion (Doc. 252), and Petitioner has filed a reply (Doc. 253). 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 granted in part and denied in part.
I.

Relevant Background
The relevant factual and procedural background was provided in detail in the Court’s prior

Ruling and Order (Doc. 246) of which Petitioner now seeks review. The Court will provide only
the essential parts of that background.
A. Procedural History up to the Fifth Circuit’s Opinion
In short, Petitioner was convicted of two counts of first-degree murder. (Petitioner’s
Statement of Uncontested Material Facts in Support of Rule 56 Motion for Summary Judgment or,

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 2 of 18

in the Alternative, for Relief from Judgment Under Rule 60(b)(6) (“SUMF”) ¶ 1, Doc. 234-2.) 1 He
was sentenced to death. (SUMF ¶ 2.)
Petitioner was denied habeas relief in state court. (SUMF ¶¶ 3–15.) Soren Gisleson was
his counsel during these proceedings. (Id.)
Petitioner then sought federal habeas relief for ineffective assistance of counsel at the
penalty phase. This issue was raised as Claim XI-C. (SUMF ¶ 17.) Respondent argued that Claim
XI-C went beyond what was presented in the state habeas proceeding, so the claim was
unexhausted and thus procedurally barred. (SUMF ¶ 19.)
Habeas relief was initially denied by Judge Brady as to all claims. (SUMF ¶ 20.) Following
Martinez v. Ryan, 566 U.S. 1 (2012), Petitioner filed a Rule 59(e) motion seeking relief from
judgment with respect to, inter alia, Claim XI-C. (Id.) He acknowledged that the claim was
procedurally defaulted, but Petitioner urged that, under Martinez, Claim XI-C could still be
reviewed because state post-conviction counsel was ineffective, thereby excusing the default. (Id.)
Judge Brady granted the Rule 59(e) motion. (SUMF ¶ 21.) He found that Claim XI-C was
procedurally defaulted but that this would be no bar because Petitioner had shown cause and
prejudice under Martinez. (SUMF ¶ 21.) 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

1

Again, the SUMF was not controverted as required by the local rules, so it is deemed admitted for purposes of this
motion. See M.D. La. LR 56(b) (2018).

2

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 3 of 18

questions of law and fact as to whether this theory applies in this
case.
(Doc. 156 at 5.)
A hearing was conducted on January 12–13, 2015 (SUMF ¶ 22), and, on July 27, 2015,
Judge Brady granted habeas relief based on Claim XI-C (Doc. 216 at 15). He found that the
elements of Martinez were satisfied (Doc. 216 at 7–9); that counsel at the penalty phase “was
deficient and fell below the objectively reasonable norms of capital counsel at a penalty phase,”
(id. at 12); and that there was a reasonable probability that, but for the errors, the results would
have been different (id. at 12–15.)
Judge Brady then issued a judgment granting the petition for writ of habeas corpus “as to
Claim XI-C (Penalty Phase Ineffective Assistance of Counsel)[;]” vacating the death sentences;
remanding the matter to state court for a new penalty phase trial; and stating, “All other claims are
denied.” (Doc. 217 at 1.)
The Fifth Circuit reversed. (Doc. 230 at 3.) Critically, the Fifth Circuit stated, “The State
raises several arguments on appeal. Because we conclude that the district court erroneously
determined that Gisleson’s initial-review representation of Wessinger was deficient, we address
only that argument.” (Doc. 230 at 7.) The Fifth Circuit went on to find that Soren Gisleson’s
performance at the state habeas phase did not fall below an objective level of reasonableness. (Doc.
230 at 8–11.) In doing so, the Fifth Circuit stated:
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 postconviction 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.”
(Doc. 230 at 10–11 (emphasis added).)

3

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 4 of 18

B. Petitioner’s MSJ and this Court’s Ruling
After remand, Petitioner filed a Motion for Summary Judgment, or, in the Alternative, for
an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for Relief from Judgment
(“MSJ”) (Doc. 234). Petitioner argued, among other things:
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 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.) Petitioner further asserted:
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 [of] 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.)
Respondent opposed the motion by arguing that Petitioner never raised this as a viable
ground for overcoming the procedural bar, but, to the extent he had, he did “not pursue it” but
rather “relied on the Martinez method until that failed.” (Doc. 244 at 13.) Respondent contended

4

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 5 of 18

that Petitioner waived or abandoned the claim and that it was otherwise barred by the Fifth
Circuit’s decision. (Doc. 244 at 13–15.)
This Court denied the MSJ. (Doc. 246.) The Court focused on Judge Brady’s ruling that
“[a]ll other claims” were denied and reasoned that this included the ineffectiveness through denial
of funds theory raised in Petitioner’s motion but not fully litigated at the hearing. (Doc. 246 at 27.)
The Court found that this was an issue that could have been appealed but was not. (Doc. 246 at
27.) According to the prior ruling, the Fifth Circuit did not address the ineffective state corrective
process theory because Petitioner did not raise the issue on appeal. (Doc. 246 at 27–28.) The Court
also rejected Petitioner’s alternative request for relief under Rule 60(b)(6) because the motion was
untimely and because of the mandate rule. (Doc. 246 at 30–31.)
II.

Relevant Standard
When a motion for reconsideration “ ‘calls into question the correctness’ of the judgment,”

the Court considers it under Fed. R. Civ. P. 59(e). Allen v. Envirogreen Landscape Prof’ls, Inc.,
721 F. App’x 322, 328 (5th Cir. 2017) (per curiam) (quoting Templet v. HydroChem Inc., 367 F.3d
473, 478 (5th Cir. 2004)). “Rule 59(e) motions serve ‘the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly discovered evidence.’ ” Id. (quoting
Templet, 367 F.3d at 478). “ ‘Reconsideration of a judgment after its entry is an extraordinary
remedy that should be used sparingly.’ ” Id. (quoting Templet, 367 F.3d at 479). “Accordingly, a
motion for reconsideration ‘is not the proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before the entry of judgment.’ ” Id. (quoting
Templet, 367 F.3d at 479).

5

Case 3:04-cv-00637-JWD-EWD

III.

Document 254

09/10/20 Page 6 of 18

Discussion
A. Parties’ Arguments
1. Petitioner’s Memorandum in Support (Doc. 248-1)
Petitioner asks the Court either to grant the MSJ or to provide relief from its ruling denying

that motion. Petitioner explains that, when he originally filed his first Rule 59(e) motion from
Judge Brady’s order denying habeas relief, Petitioner urged that he should be excused from failing
to exhaust Claim XI-C on two possible grounds: “(1) the ineffective assistance of his state habeas
counsel and (2) the state postconviction proceedings during the period of time Mr. Wessinger was
in state court were so inadequate they rendered the process ineffective.” (Doc. 248 at 3.) Judge
Brady granted the Rule 59(e) motion and ordered an evidentiary hearing on the sole issue of
whether “the Court mistreated his claim of ineffective assistance of counsel at the penalty phase
of the trial” (Doc. 248 at 4 (quoting Doc. 156 at 2).) The Fifth Circuit reversed Judge Brady solely
on the issue of whether Soren Gisleson’s performance in state post-conviction was deficient,
finding that it was not.
Petitioner asserts:
When Judge Brady’s Judgment granting relief as to Claim XI-C
included language that “[a]ll other claims are denied,” Doc. 217, the
Court’s language necessarily was referring to the claims for habeas
relief, as outlined above, which Judge Brady did not agree merited
Rule 59(e) relief, and not asserted bases for excusing the procedural
default of the clam which he agreed did merit relief, Claim XI-C.
Thus, as a result of Judge Brady’s ruling in favor of Petitioner on
the merits of his penalty phase Sixth Amendment ineffective
assistance Claim XI-C, there was nothing for Petitioner to appeal
with respect to that claim for relief. Moreover, in finding cause and
prejudice to excuse the procedural default of Claim XI-C based upon
state post-conviction counsel’s ineffectiveness, Judge Brady did not
reach, much less reject either explicitly or implicitly, the failure of
the state post-conviction process as a basis for cause and prejudice
to excuse the procedural default of Claim XI-C. See Docs. 156 and
216. In short, Petitioner won on Claim XI-C, was not the aggrieved
6

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 7 of 18

party and had nothing to appeal with respect to that claim for habeas
relief; rather, the Respondent appealed the granting of habeas relief
on Claim XI-C.
(Doc. 248-1 at 6.) Petitioner maintains that this Court manifestly erred because he had nothing to
appeal from Judge Brady’s ruling in this respect.
Petitioner also asserts that, due to this error, this Court improperly relied upon cases
involving the failure of parties to raise issues on appeal which could have been brought but were
not. Rather, this case is more analogous to United States v. Lee, 358 F.3d 315, 321-325 (5th Cir.
2004), where the Fifth Circuit found that the mandate rule did not apply because an issue was made
“newly relevant” by the appellate court:
That is the case here: the Fifth Circuit’s opinion rejecting
postconviction counsel’s ineffectiveness as a basis for cause and
prejudice to excuse the procedural default of meritorious Claim XIC, because counsel’s failure to hire a mitigation expert was due to
the denial of his funding requests and not any deficiency on his part,
Wessinger v. Vannoy, 864 F.3d 387, 392 (5th Cir. 2017), rendered
the deficiencies in the state policies and processes in postconviction
“newly relevant” by both reasoning and result of the Fifth Circuit to
the cause and prejudice determination now urged by Petitioner, the
appellee and non-aggrieved party on the previous appeal by the
Respondent. Thus, neither the law of the case doctrine nor the
mandate rule prohibit this Court’s consideration of this basis for
cause and prejudice, and the Court’s ruling to the contrary
constitutes manifest error of law and fact and a manifest injustice.
(Doc. 248-1 at 7–8.)
Petitioner next contends that the “letter and spirit” of the Fifth Circuit’s decision was to
leave in place Judge Brady’s decision that Claim XI-C was meritorious. Rather, the Fifth Circuit
found that the procedural default barred the claim. Petitioner now seeks to excuse that procedural
bar due to the state post-conviction process, a basis that was not addressed or ruled upon by Judge
Brady or the Fifth Circuit. (Doc. 248-1 at 8.)
Petitioner also asserts:
7

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 8 of 18

[T]he 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. . . . If the parties did not brief the issue
on appeal, however, then it was not before the appellate court and
was not decided.
(Doc. 248-1 at 9 (citations and quotations omitted).) Petitioner also maintains, “Nor is an issue
waived that was not briefed on appeal by the appellee in support of the district court’s favorable
judgment.” (Doc. 248-1 at 10 (citations omitted).)
Petitioner closes by arguing (1) that his request for relief under Rule 60(b) was not untimely
because Respondent has not shown prejudice; (2) that this Court is empowered to grant federal
habeas relief under Claim XI-C for ineffective assistance of counsel at the penalty phase; and (3)
that, “[a]t the very least, this Court should issue a certificate of appealability (COA), pursuant to
28 U.S.C. § 2253(c), to authorize an appeal of this Court’s denial of habeas relief” because
“petitioner has made a substantial showing of the denial of a constitutional right as a result of his
meritorious Claim XI-C and is entitled to habeas relief on that claim, the procedural default of
which can be and is excused for the cause and prejudice[.]” (Doc. 248-1 at 11–12.)
2. Respondent’s Memorandum in Opposition (Doc. 252)
Respondent begins by emphasizing that Petitioner raised his claim for ineffective state
corrective process in his request for rehearing en banc before the Fifth Circuit and in his petition
for writ of certiorari before the Supreme Court. (Doc. 252 at 2–3.) Respondent then notes that
“Judge Brady agreed to reconsider only the claim related to penalty phase ineffective assistance of
counsel, if, and only if, petitioner could establish an exception by showing that post conviction
counsel was also ineffective.” (Doc. 252 at 3–4 (citing Martinez v. Ryan, 566 U.S. 1 (2012).) Judge
Brady granted the Rule 59(e) motion only as to Count XI-C. His ruling was thus “left undisturbed
and any claimed basis other than the Martinez claim was rejected, including petitioner’s alternative

8

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 9 of 18

basis for challenging the penalty phase asserted herein, i.e., the alleged failure of the State’s
corrective process.” (Doc. 252 at 4–5.) According to Respondent, the Fifth Circuit already decided
the issue of cause and prejudice that Petitioner is now trying to relitigate, and, in any event, Judge
Brady’s original ruling is still in effect.
Turning to its argument, Respondent asserts that the Rule 59(e) motion is untimely because
Petitioner “is actually complaining about Judge Brady’s ruling that dismissed all claims except the
penalty phase ineffectiveness claim which could only be established under Martinez” rather than
the undersigned’s denial of Petitioner’s MSJ. (Doc. 252 at 7.) Respondent also maintains that
Petitioner is simply rehashing old arguments, which is not permissible under Rule 59.
Respondent next argues that the COA should be denied because there has been no
substantial showing of a denial of a constitutional right, as Petitioner is “complaining about an
alternative theory that was proffered and rejected years ago.” (Doc. 252 at 11.) Respondent also
asserts that jurists of reason would not disagree about the Court’s ruling.
3. Petitioner’s Reply (Doc. 253)
Petitioner responds by emphasizing that Respondent did not address his argument that
Judge Brady was referring in his Judgment to claims for habeas relief rather than the basis for
excusing the procedural default of Claim XI-C, upon which Judge Brady granted habeas relief.
Petitioner also disputes Respondent’s position that Judge Brady found that the only basis for
excusing the procedural default was a finding that post-conviction relief counsel was ineffective;
to rebut this, Petitioner quotes the language (excerpted above) where Judge Brady said that there
was “case law supporting this ineffectiveness through denial of funds theory” and that “there are
questions of law and fact as to whether this theory applies in this case.” (Doc. 253 at 2–3 (quoting

9

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 10 of 18

Doc. 156 at 5.) Petitioner then refers to Judge Brady’s ruling granting him habeas relief on Claim
XI-C, explaining:
Because [Judge Brady] found cause and prejudice based on initialreview counsel ineffectiveness, Judge Brady had no need to decide,
and did not decide, whether cause and prejudice to excuse the
procedural default of Claim XI-C existed as well based on the
inadequacy of the state corrective process to protect Petitioner’s
rights. Petitioner prevailed on his Rule 59 motion and prevailed on
Claim XI-C and had nothing upon which to seek further Rule 59
relief from Judge Brady, as suggested by Respondent, and had
nothing to appeal, as this Court erroneously concluded.
The opinion of the Fifth Circuit on appeal by the Respondent
reversed Judge Brady’s ruling only with respect to cause and
prejudice based upon state post-conviction counsel’s
ineffectiveness, concluding that counsel’s performance was not
deficient for failing to conduct a mitigation investigation because he
“repeatedly reached out to various organizations for funding or
assistance, and he was repeatedly denied,” Wessinger v. Vannoy,
864 F.3d 387, 392 (5th Cir. 2017). As a result, cause and prejudice
based upon the deficiencies in the state policies and processes in
post-conviction became “newly relevant” by “the reasoning” and the
“result” of the Fifth Circuit’s opinion. See, e.g., United States v. Lee,
358 F.3d 315, 321-326 (5th Cir. 2004) (on remand, the Government
successfully argued at resentencing of the appellant that the law of
the case doctrine, as well as the mandate rule, did not preclude the
district court’s discretionary upward departure sentence where the
decision of the appellate court in correcting the district court on the
initial appeal made an issue arising out of the correction – the
appropriateness of an upward departure, which was not imposed by
the district court at the original sentencing -- “newly relevant”
whether “by the reasoning or result” of the circuit court opinion),
and cases cited therein. Neither Judge Brady’s prior rulings nor the
doctrines of the law of the case or the mandate rule prohibit this
Court’s ruling on the inadequacies of the state process – fully
supported by the undisputed material facts – to provide the basis for
cause and prejudice not reached by Judge Brady. This Court’s ruling
to the contrary constitutes manifest error of law and fact and a
manifest injustice, and Petitioner is entitled to habeas relief and a
new penalty phase trial on his meritorious Claim XI-C.
(Doc. 253 at 3–4.) Petitioner also re-urges that the denial of rehearing en banc or the denial of
certiorari review “does not constitute a decision on the merits of the issues raised in the petition
10

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 11 of 18

and does not amount to law of the case.” (Doc. 253 at 5 (citations omitted).) Again, none of Judge
Brady’s rulings decided the issue of cause and prejudice as argued now by Petitioner, and the Fifth
Circuit did not address this either. To the contrary, this issue has been made newly relevant by the
Fifth Circuit’s decision.
Petitioner closes by addressing the certificate of appealability. The Court’s ruling on the
MSJ does involve a constitutional claim—ineffective assistance of counsel in violation of the Sixth
Amendment—and he was substantially prejudiced by that ruling. (Doc. 253 at 6.)
B. Applicable Law
The Court provided an extensive overview of the law of the case doctrine and mandate rule
in its prior ruling. (Doc. 246 at 21–27.) That entire discussion will not be repeated here. The Court
will instead only provide only the essentials.
“ ‘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. Critically, “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

11

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 12 of 18

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).
Equally important, 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
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 same is true for denials of petitions for writs of certiorari. See
Pondexter v. Quarterman, 537 F.3d 511, 523 (5th Cir. 2008) (“Our court . . . has held that such
denials [of petitions for rehearing en banc and for a writ of certiorari] do not constitute a decision
on the merits”) (citing Alpha/Omega Ins. Servs., 272 F.3d at 281)). Thus, neither of these
constitute the law of the case. Id.
Ultimately, “[t]he law of the case doctrine . . . 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”)).

12

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 13 of 18

“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)).
“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. (cleaned up). “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. So. Nat. 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”)).
Critical to the Court’s prior ruling, “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

13

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 14 of 18

Alan Wright & Arthur R. Miller, 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 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)).
Finally, and similarly, the rule that parties waive those issues that are not briefed is
“construe[d] . . . more leniently when the party who fails to brief an issue is the appellee.” United
States v. Luna, 264 F.3d 1142, 2001 WL 822784, at *3 (5th Cir. 2001) (per curiam). “As a general
rule, the appellee is entitled to rely on the favorable ruling of the court from which the appeal has
been taken; appellees ‘do not select the issues to be appealed [,] . . . [and] are at a procedural
disadvantage in appeals because they can neither file reply briefs nor choose when to appeal.’ ”
Id. (citing Laitram Corp. v. NEC Corp., 115 F.3d 947, 954 (Fed. Cir. 1997)). “Moreover, two of
the major policy underpinnings of the rule that the-issues-not-briefed-are-waived, i.e., ‘ “avoiding
piecemeal litigation and conserv[ing] judicial resources . . . are less implicated when the party
against whom waiver is asserted is the appellee.” ’ ” Id. (quoting Shell Offshore, Inc. v. Dir., Office
of Worker's Comp. Programs, 122 F.3d 312, 317 (5th Cir. 1997) (quoting Laitram, 115 F.3d at
954)). Thus, “ ‘[t]he failure of an appellee to have raised all possible alternative grounds for
affirming the district court's original decision, unlike an appellant's failure to raise all possible
grounds for reversal, should not operate as a waiver.’ ” Thayer v. Chiczewski, 705 F.3d 237, 247
(7th Cir. 2012) (quoting Transamerica Ins. Co. v. South, 125 F.3d 392, 399 (7th Cir. 1997)
(emphasis in Transamerica) (quoting Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th
Cir. 1996))).

14

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 15 of 18

C. Analysis
Having carefully considered the matter, the Court finds that it manifestly erred in denying
the MSJ on the sole issue of the mandate rule. As Petitioner argues, when Judge Brady said in the
Judgment that “All other claims are denied” (Doc. 217 at 1), he was referring to all claims for
federal habeas relief other than Claim XI-C (the one he found meritorious). Judge Brady was not
rejecting one particular means of excusing the procedural bar to Claim XI-C—i.e., the ineffective
state process theory. Indeed, Judge Brady found “questions of law and fact as to whether this
theory applies in this case” (Doc. 156 at 5), and he never ultimately decided the merits of this
theory.
This is critical for two reasons. First, “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.” Alpha/Omega Ins. Servs., 272 F.3d at 279 (citation omitted). Thus, if Judge Brady and
the Fifth Circuit never decided the state process theory (and they did not (see Doc. 216; Doc. 230
at 7, 10–11)), then the law of the case doctrine can be no bar to Petitioner pursuing it now.
Second, this Court based its prior ruling that the mandate rule barred the MSJ on the point
of law that “ ‘[a]ll other issues not arising out of this 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.’ ” Griffith, 522 F.3d at 610 (quoting Lee, 358 F.3d at 323 (emphasis in
Lee)). But, as Petitioner argues, he could not have brought this issue in his original appeal because
Judge Brady never ruled on it. Thus, the mandate rule also does not bar Petitioner from pursuing
the ineffective state process theory at this time.
Other reasons also compel this Court to conclude that its prior ruling was mistaken. The
Petitioner was the appellee after Judge Brady’s ruling granting habeas relief, and, as established

15

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 16 of 18

above, “ ‘[t]he failure of an appellee to have raised all possible alternative grounds for affirming
the district court's original decision, unlike an appellant's failure to raise all possible grounds for
reversal, should not operate as a waiver.’ ” Thayer, 705 F.3d at 247 (citations omitted); see also
Luna, 2001 WL 822784, at *3. Further, contrary to Respondent’s position, the fact that Petitioner
unsuccessfully asserted this theory in his request for en banc review and petition for writ of
certiorari is irrelevant, as these do not constitute decisions on the merits and are thus not the law
of the case. Pondexter, 537 F.3d at 523; Alpha/Omega Ins. Servs., 272 F.3d at 281. In short, this
Court manifestly erred in finding the Petitioner’s claim foreclosed by the mandate rule.
The Court agrees with Petitioner that Lee is analogous. In Lee, the Fifth Circuit found that
a mandate did not “prohibit[] the district court from reconsidering and imposing a discretionary
upward departure[.]” 358 F.3d 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).
Similarly, the Court finds that Petitioner was “amply justifie[d]” in his “earlier silence”
about the inadequate state process theory and that this issue was “not appealable in the initial

16

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 17 of 18

appeal.” Id. at 324. Further, Petitioner was not required to raise “every possible contingency” on
appeal, particularly since, again, he was the appellee. Id. Lastly, the inadequate state process
theory was certainly made “newly relevant” by the Fifth Circuit decision, which did not directly
rule on the issue. Id. at 326; see also Fifth Circuit Doc. 230 at 7 (“The State raises several
arguments on appeal. Because we conclude that the district court erroneously determined that
Gisleson’s initial-review representation of Wessinger was deficient, we address only that
argument.”). 2 All of this demonstrates that this Court manifestly erred in denying the MSJ on the
mandate theory.
The Court also rejects Respondent’s arguments. Petitioner is not “actually complaining
about Judge Brady’s” rulings (Doc. 252 at 7); he is complaining about this Court’s ruling on the
MSJ. Thus, Petitioner’s motion is timely. Further, Petitioner is not simply rehashing old
arguments, and, even if he were, it would not stop this Court from correcting its manifestly
erroneous decision.
For all these reasons, the Court will grant Petitioner’s motion in part and grant Petitioner
relief from its earlier decision. Because the Court based its ruling solely on the mandate issue, it
never reached the merits of the inadequate state process theory and whether that excused the
procedural default for Claim XI-C. As a result, Petitioner may refile an amended MSJ—or
otherwise seek relief with respect to the inadequate state process theory—and the Court will take

2

To the extent that the Fifth Circuit did address a lack of funding, it arguably did so favorably to Petitioner; speaking
of Gisleson’s performance, the appellate court said:
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.

(Doc. 230 at 10–11.) At the very least, this is all the more reason why the inadequate state process theory was
“newly relevant” by the Fifth Circuit’s decision.

17

Case 3:04-cv-00637-JWD-EWD

Document 254

09/10/20 Page 18 of 18

up the issue (either on the papers or at an evidentiary hearing). If the Court finds that this theory
does excuse the default, then it is highly likely that this Court will reinstate Judge Brady’s decision
granting habeas relief on Claim XI-C because (1) the Fifth Circuit left this decision intact; (2) the
issue was fully litigated already in this case before Judge Brady; and (3) the Court agrees with
Judge Brady’s reasoning.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Petitioner’s Motion to Alter or Amend Judgment Denying

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, or, in the Alternative, to
Grant Petitioner Habeas Relief on Claim XI-C (Doc. 248) is GRANTED IN PART and DENIED
IN PART, as described herein.
Signed in Baton Rouge, Louisiana, on September 10, 2020.

S

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

18