Allen v. United States of America

Filing 382

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner Billie Jerome Allen's Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59 is DENIED. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim. Signed by District Judge E. Richard Webber on 08/22/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BILLIE JEROME ALLEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:07CV00027 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Billie Jerome Allen’s Motion to Alter or
Amend Judgment Pursuant to Federal Rule of Civil Procedure 59 [ECF No. 379].
I.

BACKGROUND
On March 17, 1997, Petitioner Billie Jerome Allen and Norris Holder robbed the Lindell

Bank & Trust Company in Saint Louis, Missouri. The bank robbery resulted in the death, by
multiple gunshot wounds, of bank security guard Richard Heflin. Mr. Allen was indicted for
crimes stemming from the armed bank robbery in April 1997. Count I of the indictment charged
him with killing Mr. Heflin in the course of committing an armed bank robbery, in violation of
18 U.S.C. § 2113(a) and (e) (1994). Count II of the indictment charged Mr. Allen with using a
firearm to commit a crime of violence resulting in the death of another under circumstances
constituting first-degree murder, in violation of 18 U.S.C. § 924(j)(1) (1994 and Supp. II 1996).1
The Government filed a timely notice of intent to seek the death penalty, and, following a trial, a
jury found Mr. Allen guilty on both Counts. Following a separate penalty phase, the jury

1

Norris Holder was indicted and convicted of identical counts. He received sentences of death
on both counts.

returned a sentence of life imprisonment on Count I, and a sentence of death on Count II. The
Court formally sentenced Mr. Allen on June 4, 1998.
On February 11, 2008, Mr. Allen filed his Amended Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Under a Sentence of
Death (Amended Motion) [ECF No. 60],2 raising numerous grounds for relief.

In its

Memorandum and Order dated May 10, 2011 [ECF No. 147], the Court denied, without an
evidentiary hearing, all but one of Mr. Allen’s asserted grounds of relief. The Court granted an
evidentiary hearing regarding Mr. Allen’s claim trial counsel were ineffective for failing to
adequately investigate and present mitigating evidence at the penalty phase of trial.
On June 14, 2011, Mr. Allen filed a Motion for Reconsideration [ECF No. 149], asking,
inter alia, the Court to reconsider various portions of its May 10, 2011 Memorandum and Order.
The Court denied the Motion for Reconsideration on August 29, 2011. ECF No. 165. Then, on
dates between June 4, 2012 and December 10, 2012, the Court conducted an extensive
evidentiary hearing on Mr. Allen’s claim trial counsel were ineffective for failing to adequately
investigate and present mitigating evidence at the penalty phase of trial. Afterward, the parties
submitted post-hearing briefs.
On November 25, 2013, Mr. Allen filed a Letter to the Court requesting permission to file
a pro se motion raising additional grounds for his pending Amended Motion. The Court,
although recognizing it had no obligation to entertain pro se filings while Mr. Allen is
represented by counsel, permitted Mr. Allen to state his additional grounds for relief. The Court
allowed Mr. Allen to “submit only those filings necessary to apprise the Court of (1) the
substance of his additional grounds for relief, and (2) whether such grounds have been

2

Mr. Allen supplemented this Amended Motion on August 17, 2009. ECF No. 98.
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procedurally defaulted.” ECF No. 361 at 2. On February 12, 2014, after receiving additional pro
se filings outside this scope, the Court ordered, in the future, it would only accept filings through
counsel of record. ECF No. 372.
On June 25, 2014, the Court denied relief as to both the pro se filings and the filings
submitted with assistance of counsel, including the claim litigated at the evidentiary hearing.
ECF Nos. 373-74. The Court entered judgment against Mr. Allen the same date. ECF No. 375.
Mr. Allen filed a pro se Motion for Recusal [ECF No. 377] on July 7, 2014, which the Court
struck from the record pursuant to its February 12, 2014 Order. In the instant Motion, Mr. Allen,
through counsel, seeks to alter the Court’s June 25, 2014 judgment.
II.

STANDARD
Under Federal Rule of Civil Procedure 59(e), a district court has broad discretion to “alter

or amend a judgment . . . no later than 28 days after the entry of judgment.” Fed. R. Civ. P.
59(e); Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284,
1286 (8th Cir. 1998). Motions under Rule 59(e) “serve the limited function of correcting
manifest errors of law or fact or to present newly discovered evidence.” U.S. v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (internal quotations omitted). “Rule 59(e)
motions cannot be used to introduce new evidence, tender new legal theories, or raise new
arguments which could have been offered or raised prior to the entry of judgment.” Id. at 934.
III.

DISCUSSION
In the instant Motion, Mr. Allen argues the judgment should be amended on several

grounds. First, he contends the Court erred in finding he was not denied effective assistance of
counsel in relation to his efforts to suppress certain incriminating statements made to law
enforcement officials. Second, he claims the Court erroneously concluded counsel was not

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deficient for failing to present various forms of alleged exculpatory evidence during the guilt
phase of trial. Finally, Mr. Allen states the Court should have granted relief on the grounds set
forth in his pro se filings. For reasons stated infra, relief will be denied.
A.

Motion to Suppress

On May 8, 1997, Mr. Allen filed a Motion to Suppress certain incriminating statements
he made to law enforcement officials. See Case No. 4:97CR00141 ERW, Doc. No. 71. At the
suppression hearing, the Government presented evidence indicating Mr. Allen was properly
informed of his Miranda rights at the time of his arrest – approximately 2:00 A.M. on March 18,
1997 – and again upon his arrival at police department headquarters a short time later. A few
hours later, Federal Bureau of Investigation (FBI) Special Agent Jan Hartman attempted to give
Allen a third Miranda warning, but he interrupted her by requesting an attorney.

The

Government’s evidence further suggested, on the following morning, Mr. Allen participated in a
lineup but declined to have counsel present. After he was identified, a detective declined his
request to “talk about it” based on his previous request for an attorney, whereupon he responded
he did not want an attorney and wished to speak to a Lieutenant Henderson.

Testimony

indicated Mr. Allen was then directly led to an interview room and given a Miranda warning
once again, at which point he made incriminating statements.
Mr. Allen contends the Court manifestly erred in concluding he was not denied effective
assistance of counsel in connection with his motion to suppress statements made to the police.
Specifically, Mr. Allen argues the Court erred by finding: (1) “the magistrate judge did not rule
that Mr. Allen would be subject to cross examination on anything other than the issues pertaining
to his motion to suppress,” (2) “counsel’s performance was not deficient,” and (3) “counsel

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submitted a timely offer of proof to the magistrate court concerning Mr. Allen’s proffered
testimony.” ECF No. 379 at 9. For reasons stated infra, the Court does not agree.
1.

Scope of Cross Examination at the Suppression Hearing

First, Mr. Allen contends the Court manifestly erred when it held, “The magistrate judge
did not suggest that [Mr.] Allen would be subject to cross examination on anything other than the
‘preliminary matter’ of issues relevant to his motion to suppress[.]” ECF No. 147 at 11. Mr.
Allen claims the magistrate judge stated he would be subject to cross examination on any subject
pertaining to the case if he chose to testify at the suppression hearing; he states he opted out of
testifying on this basis. Mr. Allen states, had the magistrate judge properly limited the scope of
cross examination to matters discussed on direct examination, he would have testified at the
suppression hearing. He further argues his testimony would have resulted in the exclusion of his
incriminating statements to law enforcement officers.
The Court finds it did not manifestly err in concluding “[t]he magistrate judge did not
suggest that [Mr.] Allen would be subject to cross examination on anything other than the
‘preliminary matter’ of issues relevant to his motion to suppress[.]” ECF No. 147 at 11. The
relevant portion of the suppression hearing transcript reads as follows:
THE COURT:
I just want the, -- I just want to make my point. I don’t
know what Mr. Landolt’s position is, but to avoid this when we’re in the middle
of it, my position is once an individual takes a witness stand he’s there for
whatever cross examination that may pop up, especially in a situation like this.
So, if you want to limit his testimony to various items, I’m not so sure that I can
keep Mr., -- or I won’t keep Mr. Landolt to that limitations [sic]. I want to make
sure you knew that going in.
MR. DEDE:
Oh, alright. Well, then let me discuss that with the
Defendant. It would be my position that consistent with, -THE COURT:
Unless Mr. Landolt agrees to cross only on the issues
addressed in questioning.

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MR. LANDOLT:
Judge, I think once he takes the witness stand he’s, -- the
issues in the case are the scope of cross examination.
THE COURT:

Yeah. Well, that’s what, --

MR. DEDE:

Well, -- I’m sorry. I didn’t mean to interrupt.

THE COURT:

No, that’s okay. Go ahead.

MR. DEDE:

No, please, you.

THE COURT:
I probably should have let Mr. Landolt make that objection
first, but, again, I didn’t want to put you in a position of making the ruling before,
-- or after you had already subjected your client to the cross examination. That’s
my understanding of the law. But if you can convince me otherwise, I’ll be glad
to listen to it.
MR. DEDE:
Well, my position, -- my argument is, that just as the
Government has objected all day long about being limited in the scope of this
proceeding, I think that his testimony is limited to the scope of this proceeding.
THE COURT:
Yeah, it is, except, -- I think you’re right, except that I just
think it goes a lot broader on, -- because Mr. Allen and Mr. Holder, for that
matter, -- Mr. Holder and Mr. Allen, I should say, were participants in this
questioning and answer process in the police department from get to go [sic], that
the cross examination is gonna be a lot wider and more open than I permitted with
the police officers who were here to, -- or the witnesses who were just here to
testify about the specific identification processes.
MR. DEDE:
that with Mr., --

Okay. Well, if I could just have a few minutes to discuss

THE COURT:

Mr. Sindel, are you gonna make the same type of request?

MR. SINDEL:
Yes, your Honor. I had indicated to you in chambers that I
had intended to call my client, and I intended to seek an order from the Court in a
Motion in Limine to restrict the cross examination to those matters that were
brought up and appropriately touched up [sic] in the direct examination. It’s my
understanding that that would be, in fact, the rule of law, that there would not be a
situation in which they could be questioned about other matters that have not been
specifically raised during the course, -- or touched upon during the course of
direct. Just so the record is clear, and I hope I’m not misstating anything, but, you
know, you did indicate to me what your ruling would be in that particular
situation and I indicated to you that I would like to make an offer of proof in that
regard. I don’t know how the Court wants me to do it. I know if we were in State
Court how you’d want me to do it, but, --

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THE COURT:
I wouldn’t want you to do it, okay. But I’m not gonna let
you have, -- how would you want to make the offer of proof.
MR. SINDEL:
I could either do it through the testimony of the Defendant
or I could do it through the statements that I make to the Court.
Yeah, that’s how I would prefer you doing [sic].

THE COURT:

Evid. H’rng Tr., Case No. 4:97CR00141 ERW, p. 348:8-351:1 (May 16, 1997). Reading this
exchange as a whole makes clear the magistrate judge did not state Mr. Allen would be subject to
cross examination on “all matters related to his case,” as Mr. Allen argues. ECF No. 379 at 9.
Rather, the magistrate judge simply observed, due to Mr. Allen’s multiple contacts with police
officers, his cross examination would be broader than the cross examinations of witnesses who
had merely testified about the lineup and identification. The magistrate judge clarified this
concept when he contrasted Mr. Allen – who participated in the “questioning and answer
process” – with other witnesses “who were just [there] to testify about the specific identification
processes.” Evid. H’rng Tr., Case No. 4:97CR00141 ERW, p. 349:15-23 (May 16, 1997). Thus,
the magistrate judge did not state he would allow Mr. Allen to be cross examined “on all matters
related to his case,” and the Court finds no manifest error.
2.

Deficient Performance

Next, Mr. Allen argues, even if this Court properly determined the scope of the
magistrate judge’s ruling, trial counsel was deficient “for failing to understand the ruling, to ask
for clarity if he did not understand, and to properly advise Mr. Allen about testifying in light of
that ruling.” ECF No. 379 at 12. Mr. Allen states, if trial counsel understood the magistrate
judge’s ruling, Mr. Allen would have been advised to testify, and his incriminating statements
would have been excluded.

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As the Government notes, Mr. Allen could have, but did not raise this argument prior to
the instant Motion.3 “Rule 59(e) motions cannot be used to introduce new evidence, tender new
legal theories, or raise new arguments which could have been offered or raised prior to the entry
of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at 934. Because Mr. Allen has never
before asserted this argument, it is not the proper subject of his instant Rule 59(e) Motion, and
relief will not be granted on this ground.
3.

Offer of Proof

As noted in Section III.A.1, supra, on May 16, 1997, the magistrate judge permitted Mr.
Allen to submit an offer of proof, describing how he would have testified at the suppression
hearing if he had chosen to do so. On June 13, 1997, the magistrate judge, in a Report and
Recommendation, recommended denial of Mr. Allen’s Motion to Suppress.

Case No.

4:97CR00141 ERW, Doc. No. 89. On June 18, 1997, Mr. Allen’s trial counsel filed a Motion to
Supplement the Record on Defendant’s Motions to Suppress Evidence, Identification and
Statements; in the Motion, counsel explained, “through inadvertence and error, the [offer of
proof], though prepared, was not . . . filed with the court.” Case No. 4:97CR00141 ERW, Doc.
No. 91. The following day, trial counsel for Mr. Allen filed the offer of proof, which generally
alleged detectives repeatedly interrogated Mr. Allen both before advising him of his Miranda
rights and after he invoked his rights. Case No. 4:97CR00141 ERW, Doc. 92. On July 8, 1997,
the magistrate judge granted the Motion to Supplement, adding the following explanation:
Pending before the undersigned United States Magistrate Judge is the motion of
defendant Billie Jerome Allen to file an Offer of Proof . . . in order to supplement
the record on his motions to suppress evidence, identification, and statements.
Defendant explains in that motion that the offer of proof was prepared in
accordance with the undersigned’s order granting him leave at the conclusion of
the evidentiary hearing to file an offer of proof detailing what the testimony of
3

Tellingly, Mr. Allen does not attempt to rebut this point in his Reply brief. See ECF No. 381.
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defendant would have been had the Court allowed him to testify under the
limitations he requested; however, the offer of proof was inadvertently never filed
with the Court.
Case No. 4:97CR00141 ERW, Doc. No. 104. The same day, the magistrate judge issued a
Supplemental Order and Amended Findings of the United States Magistrate Judge, which
amended factual findings unrelated to the offer of proof. Case No. 4:97CR00141 ERW, Doc.
No. 103. This Court adopted the magistrate judge’s findings and denied the Motion to Suppress
on August 13, 1997. Case No. 4:97CR00141 ERW, Doc. No. 133.
On January 13, 1998, the magistrate judge issued yet another Report and
Recommendation, the purpose of which was described as follows:
A previous evidentiary hearing on these . . . motions [to suppress identification]
was held on May 16, 1997. Thereafter, the Assistant United States Attorney
advised Defendants and the Court that three additional identification procedures
occurred after the May 16 evidentiary hearing, thereby requiring another hearing.
Case No. 4:97CR00141 ERW, Doc. 202. The magistrate judge addressed these new matters
without discussing the offer of proof, and without affecting the ruling of the original Motion to
Suppress. On February 4, 1998, this Court adopted the second Report and Recommendation.
Case No. 4:97CR00141 ERW, Doc. 242.
In the instant Motion, Mr. Allen contends this Court manifestly erred when it found the
offer of proof was available to the magistrate judge in rulings subsequent to the initial Report and
Recommendation. Mr. Allen asserts the offer of proof was, in fact, untimely, because it was
unavailable to the magistrate judge when he issued the initial Report and Recommendation. Mr.
Allen contends he was prejudiced, because the offer of proof was never discussed in subsequent
rulings.
The Court does not agree. As previously stated in the Memorandum and Order dated
May 10, 2011,

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Although counsel failed to provide the offer of proof before the initial [Report and
Recommendation] was filed, counsel’s submission prior to the amended [Report
and Recommendation] ensured that the magistrate judge had the opportunity to
consider it, and it also served to preserve any objection to the magistrate judge’s
ruling on the scope of cross-examination.
ECF No. 147 at 11. In the instant Motion, Mr. Allen has not convinced the Court its previous
ruling was incorrect; merely because subsequent orders made no mention of the offer of proof
does not mean both the magistrate judge and this Court failed to consider it. Any purported
“deficiency” of counsel was promptly cured by the June 18, 1997 Motion to Supplement the
Record on Defendant’s Motions to Suppress Evidence, Identification and Statements. In short,
as it has in previous rulings, the Court still concludes counsel’s conduct fell “within the wide
range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689
(1984). The Court finds no manifest error, and will not amend the judgment on this ground.
B.

Guilt Phase Evidence

In his second ground for relief, Mr. Allen argues the Court manifestly erred by
concluding (1) there was a “lack of any colorable allegations linking [Jerry] Bostic to the crimes
for which [Mr.] Allen was convicted,” and (2) even if evidence did link Bostic to the crimes, the
Court’s confidence in the outcome of the trial would not be undermined, due to other
incriminating evidence. ECF No. 147 at 40. For reasons stated infra, the Court finds no
manifest error.
1.

Colorable Allegations Linking Jerry Bostic to the Crimes

As to his first contention, Mr. Allen claims documents and physical evidence support his
allegations another individual, Jerry Bostic, was responsible for the bank robbery, instead of Mr.
Allen. Specifically, he states FBI records indicate Bostic was investigated as an individual
having contacts with Holder in the days preceding the crime. He also argues records reflect

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Bostic’s height was 5’8”, not 5’5”. Mr. Allen contends Bostic had scars on his hands and
forearms, consistent with someone involved in the bank robbery. Finally, Mr. Allen argues the
blood on two pieces of physical evidence – a bulletproof vest strap and a damp rag – should have
been tested to determine whether it matched Bostic’s DNA.4
None of these allegations support Mr. Allen’s claim of manifest error, because each
individual allegation is refuted by the record. For example, Mr. Allen cites a single FBI report,
describing the statements of a witness named Wayne Ross. The relevant portion of the report
states,
When asked if he was familiar with anyone named JB, Ross advised that either
Wednesday or Thursday of Spring Break, a group of friends were at Ross’
grandmother’s residence playing playstation when Holder was paged. Shortly
thereafter, someone called for “808”, a nickname for Holder. Ross asked who
was calling, and the caller told him JB. Ross asked Holder who it was, and
Holder told him one of Bill’s “cats.”
ECF No. 94-53. As the Court previously explained, this evidence, “assuming it means what
[Mr.] Allen claims it means, might tend to inculpate the since-deceased Jerry Bostic, [but] it does

4

In arguing this purported DNA evidence would undermine confidence in the outcome of his
trial, Mr. Allen cites U.S. v. Fasano, 577 F.3d 572 (5th Cir. 2009). Fasano, however, is
inapposite for two reasons. First, Fasano addressed whether a convicted felon was entitled to
DNA testing under Innocence Protection Act, not whether counsel was ineffective for failing to
present alleged DNA evidence. 577 F.3d at 574-77. Second, Fasano is distinguishable on its
facts, because, there, trial counsel presented substantial evidence connecting another individual
with the crime:
Hughes had a criminal record and had been staying in [Fasano’s] old room as a
guest of Fasano’s brother. The defense argued that Hughes had access to the
green shirt, hard hat and glasses; that although Fasano’s finger prints were on the
demand note, the paper on which the demand note was written came from his old
room. The state of course put the clothes on Fasano with the eyewitness
testimony and Fasano would put them on Hughes. That the robber wore them and
presented the note was never at issue.
Id. at 578. In contrast, as discussed in Section III.B.1, supra, there is no colorable evidence
linking Bostic with the bank robbery.
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not in any way suggest that [Mr.] Allen was not involved in the robbery.” ECF No. 147 at 43.
In his instant Motion, Mr. Allen fails to show how this conclusion was manifest error.
Mr. Allen’s remaining arguments equally fail. Based on a Missouri state court record and
descriptions from two witnesses, Mr. Allen claims Bostic’s height was 5’8”, not 5’5”. Bostic’s
autopsy report, however, indicates his height was 5’5”. ECF No. 94-23 at 5. The autopsy report
is also the single document cited for Mr. Allen’s proposition “Bostic had scars on his hands and
forearms consistent with someone who was injured and bled at the scene of the crime.” ECF No.
379 at 19. While the medical examiner did note some scarring in these areas, there is no
evidence in the record to support Mr. Allen’s speculative assertion the scars were “consistent
with someone who was injured and bled at the scene of the crime.” In fact, the report indicates
Bostic died on May 22, 1998: over a year after the bank robbery. Finally, the bulletproof vest
strap tested negative for the DNA of Mr. Allen and Mr. Heflin. It was not tested, however, for
the DNA of Holder – the person who was wearing body armor at the scene of the crime. ECF
No. 79-2 at 12. The allegation it could have contained Bostic’s blood is entirely speculative and
unsupported.5
Most importantly, however, Mr. Allen’s arguments erroneously assume Bostic’s potential
involvement in the crimes would exculpate Mr. Allen. Assuming only for the sake of argument
Mr. Allen’s allegations were supported by the record, he has still failed to come forward with
any evidence demonstrating Bostic’s involvement is tantamount to his own exoneration, or
5

Even more speculative is Mr. Allen’s contention the “damp rag” constitutes exculpatory
evidence. Mr. Allen has provided no citations to the record suggesting a damp rag tested
negative for his blood. In fact, in a pro se pleading, Mr. Allen concedes the damp rag was never
tested against himself, the victim, or Holder. ECF No. 363 at 15. In his arguments regarding the
damp rag, Mr. Allen provides a single citation to the record: an “Evidence Technicians Report,”
which states, inter alia, “Damp rag – found on [illegible] seat of vehicle – DNA testing.” ECF
No. 381-1. At most, this document suggests the damp rag was sent for DNA testing; it by no
means, however, establishes the rag had any biological material on it at all.
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would otherwise implicate a reasonable probability of a different outcome. Mr. Allen has failed
to show manifest error, and the Court will not amend the judgment on this basis.
2.

Weight of the Totality of the Evidence

Mr. Allen contends the Court erred in finding DNA evidence linking Bostic to the crime
would not undermine confidence in Mr. Allen’s convictions and sentence. In essence, Mr. Allen
claims the Court erred in weighing the impact of the allegedly unpresented evidence discussed
above, because much of the incriminating evidence was tenuous. In so stating, Mr. Allen largely
reasserts arguments already addressed in this Memorandum and Order.6 Therefore, the Court
will discuss only those topics not already addressed.
First, Mr. Allen claims the habeas evidence would have rebutted the testimony of Police
Officer Carroll, who testified Mr. Allen smelled strongly of smoke when he was arrested. 7 Mr.
Allen states trial counsel was ineffective for failing to present available forensic evidence
indicating his clothes did not contain petroleum distillates. Mr. Allen, however, fails to point to
any manifest error in the Court’s previous ruling:
The Government presented evidence in response to Allen’s Motion from Forensic
Scientist Margart Owens, manager of the St. Louis Metropolitan Police
Department’s Arson Section, stating that a test for petroleum distillates is “not a
test for the presence of smoke” and that “there is no correlation between the smell
of smoke on clothes from Mr. Allen and the Laboratory’s analysis result that ‘no
petroleum distillates were detected’ on the clothes.” Even without this evidence,
it is apparent that “petroleum distillates” refers to actual petroleum products, not
to trace evidence left by smoke. Furthermore, as noted above, and as will be
restated multiple times in this section, it is incredibly unlikely that this relatively
minor piece of evidence, even if given the import Allen suggests, would have
resulted in a different outcome at trial. Trial counsel’s decision not to attempt to
impeach Officer Carroll with it did not violate Allen’s Sixth Amendment right to
counsel.
6

For example, Mr. Allen contends the statements he made to police are “subject to debate.”
ECF No. 379. For reasons discussed in Section III.A, supra, the Court does not agree.
7
This testimony was used to link Mr. Allen to the crime, because the getaway vehicle had been
doused in gasoline and set afire.
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ECF No. 147 at 41 (quoting ECF No. 79-1 at 26-27). In short, Mr. Allen rehashes his previous
argument, but fails to state a proper basis for relief under Rule 59(e).
Second, Mr. Allen contends counsel’s performance was deficient for failing present
evidence establishing a witness, Chris Shegog, purportedly saw Mr. Allen at a shopping mall at
the same time other witnesses saw a fleeing suspect in Forest Park.8 However, Mr. Allen
presents this theory for the first time in this Rule 59 Motion. “Rule 59(e) motions cannot be used
to introduce new evidence, tender new legal theories, or raise new arguments which could have
been offered or raised prior to the entry of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at
934. Moreover, the Court could not have manifestly erred in ruling on a matter not presented to
it. Therefore, the Court will not consider the newly asserted theory regarding Chris Shegog in
ruling the instant Motion.9
In sum, each individual allegation of “deficient performance” is without merit.
Reexamining the “totality” of the proffered unpresented evidence, as Mr. Allen urges, does not
change this fact. There is still no deficient performance, and no reasonable probability of a
different outcome. That is, taking all of Mr. Allen’s arguments as a whole, the Court finds his
allegations insufficient to undermine confidence in the outcome, and finds no manifest error in
the previous rulings.
Finally, in an apparent attempt to establish a deficient performance by trial counsel, Mr.
Allen offers recent correspondence between trial attorney Rick Sindel and himself. Specifically,
in a letter dated July 1, 2014, Mr. Allen asked Mr. Sindel the following questions:

8

Forest Park is in the vicinity of the Lindell Bank & Trust Company.
In addition, for all the cogent reasons stated in the Government’s brief, the Court finds trial
counsel was not deficient for failing to present Shegog as a witness. ECF No. 380 at 11-13.
9

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1) Before and/or during my trial, if you had known that the government
discovered traces of DNA at the crime scene, and after testing, the results
excluded me and the victim; would you have investigated this evidence further
and/or presented the results to my jury to establish reasonable doubt?
2) Before and/or during my trial, if you had known that the government was in
possession of recordings of witnesses, who were at the crime scene; would you
have wanted those recordings in determining what to present on my behalf and/or
to use in cross examining the witnesses: being that witnesses stories would change
at trial from what was in their police or FBI 302 forms?
3) Before and/or during my trial, had you known that the government would test
my clothes for traces of gasoline, (in hopes of linking me to the crime), but the
results would later exclude my clothes for traces of gasoline; would you have
investigated this further or presented this to my jury to establish reasonable
doubt?
4) Before and/or during my trial, had you known that officers lied about
Henderson and I knowing each other from the Marquise murder and evidence
could prove the lie; would you have investigated this evidence and/or presented it
to impeach the witnesses?
5) Before and/or during my trial, had you known the government planned to use
charges in my indictment to establish motive (and other things) and the charges
would later be revealed to be done by someone else; would you have investigated
these facts, kept them from being heard by my jury, or had them removed from
the record all together?
6) Before and/or during my trial, had you known that someone name [sic] Jerry
Bostic or (JB) could be linked to the DNA found at the crime scenes and that he
had possible links to the planning and possibly the crime; would you have
investigated him and/or presented him as a witness, or ask for testing to link him
to the crime?
ECF No. 379-2 at 3-5. In a response dated July 21, 2014, Mr. Sindel answered as follows:
1.
2.
3.
4.
5.
6.

Yes
Yes
Yes
Yes
I do not understand the question
Yes.

ECF No. 379-2 at 1. Even assuming as true Mr. Allen’s dubious proposition “these responses
indicate either that Mr. Sindel did not adequately fulfill his obligation to be familiar with the

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available evidence in this case, or that Mr. Sindel failed to adequately follow up on these leads
and present the available evidence to the jury,” ECF No. 379, this correspondence constitutes
new evidence. As repeatedly stated throughout this Memorandum, “Rule 59(e) motions cannot
be used to introduce new evidence . . . which could have been offered or raised prior to the entry
of judgment.” Metro. St. Louis Sewer Dist., 440 F.3d at 934. Therefore, the Court will disregard
the July 2014 correspondence between Mr. Allen and Mr. Sindel for purposes of ruling the
instant Motion.
C.

Pro Se Filings

Mr. Allen argues the Court manifestly erred in denying his pro se grounds for habeas
relief. First, he contends the Court is biased and should be recused. Mr. Allen asserted this
argument in his Motion for Recusal [ECF No. 377], which the Court struck from the record
pursuant to its February 12, 2014 Order [ECF No. 372], stating the Court only would accept
future filings from counsel of record.10 In the instant Motion, Mr. Allen does not challenge the
Court’s decision to strike his filing; instead, he largely reasserts, in many places verbatim, his
previous arguments for recusal. In short, he contends the Court should have granted his Motion
for Recusal based on the merits. However, the Court did not examine the merits, because the
Motion was stricken from the record. Without adjudicating the Motion, there could be no
manifest error.
Therefore, the Court turns to Mr. Allen’s remaining arguments, which simply rehash his
previous pro se allegations there was (1) a fraud on the Court in connection with testimony at the
suppression hearing, (2) a conflict of interest between Mr. Allen and Mr. Sindel, and (3) a Brady
violation regarding audio recordings of witness interviews allegedly in the Government’s
10

“There is no constitutional or statutory right to simultaneously proceed pro se and with benefit
of counsel.” U.S. v. Agofsky, 20 F.3d 866, 872 (8th Cir. 1994).
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possession. See ECF Nos. 379 at 35-41, 363 at 1-13, 370 at 1-4. The Court addressed these
arguments in a Memorandum and Order dated June 25, 2014 [ECF No. 373]. As Mr. Allen
simply reasserts his previous arguments, and fails to allege any manifest error, or otherwise
assert a basis for relief under Rule 59(e), the Court now denies his arguments for the same
reasons it found he was not entitled to habeas relief or an evidentiary hearing.
IV.

CERTIFICATE OF APPEALABILITY
Finally, Mr. Allen asks the Court to grant a certificate of appealability as to the matters

addressed supra. In order for Mr. Allen to receive a certificate of appealability, the Court must
conclude he has made a substantial showing on the issues presented to the Court. Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing that issues are debatable
among reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings.” Id. The Court concludes Mr. Allen has failed to make a substantial
showing as to any of his claims. Therefore, the Court will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Billie Jerome Allen’s Motion to Alter or
Amend Judgment Pursuant to Federal Rule of Civil Procedure 59 is DENIED.
IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability
as to any claim.
Dated this 22nd Day of August, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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