Sutton v. Colson (TVP)

Filing 36

AMENDED MEMORANDUM OPINION AND ORDER (re 35 Order ). Petitioner's motion to alter or amend is hereby DENIED 31 , except that the Court RESERVES RULING on Petitioner's request to alter or amend. Signed by District Judge Thomas A Varlan on 4/12/12. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
GARY WAYNE SUTTON,
Petitioner,
v.
RICKY BELL, WARDEN,
Respondent.

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No.:

3:07-CV-30
(VARLAN/SHIRLEY)

AMENDED MEMORANDUM OPINION AND ORDER
Petitioner Gary Wayne Sutton filed a petition pursuant to 28 U.S.C. § 2254, which the
Court dismissed on the merits and on the basis of procedural default by order entered on
September 29, 2011 [Docs. 28, 29]. Petitioner now brings two motions: (1) a motion
requesting that the Court stay proceedings in this matter [Doc. 30], and (2) a motion to alter
or amend the Court’s judgment dismissing his § 2254 petition [Doc. 31]. The latter motion
will be treated as a motion filed under Fed. R. Civ. P. 59(e), as it was filed within the
applicable time period, i.e., “no later than 28 days after the entry of the judgment.” Fed. R.
Civ. 59(e). Respondent has filed responses in opposition to the motions, and Petitioner filed
a reply to Respondent’s response to the motion to stay [Docs. 32, 33, & 34]. For the reasons
explained herein, both motions will be denied [Docs. 30, 31], but Petitioner’s request to brief
an issue pertaining to procedural default will be granted.

I.

Motion to Hold Case in Abeyance
Petitioner moves the Court to stay proceedings in this matter pending the Supreme

Court’s ruling in Maples v. Thomas, No. 10-63, and Martinez v. Ryan, 10-1001, on the basis
that the issues presented in those cases “may be dispositive of the question of whether Mr.
Sutton has in fact procedurally defaulted several of his claims” [Doc. 30]. Respondent
opposes the request, arguing that the facts in Maples have no application to this case because
Petitioner presented no argument “that his rights were defaulted by a party not acting on his
behalf, or caused by the State itself[,]” and that the issue presented in Martinez “is limited
to procedural default situations in which a defendant is legally prohibited from bringing
ineffective assistance of counsel claims on direct review, a condition not found in Tennessee”
[Doc. 33].
The Court recognizes that during its consideration of the motions that are the subject
of this memorandum opinion and order, the Supreme Court issued rulings in both Maples and
Martinez. See Martinez v. Ryan, No. 10-1001, 2012 WL 912950 (U.S. 2012); Maples v.
Thomas, 565 U.S. —, 132 S. Ct. 912 (2012). Because Petitioner states that “[t]he only issue
[with respect to the motion] is whether this court should briefly stay Mr. Sutton’s case so that
it may ultimately be disposed of in a manner consistent with Supreme Court precedent,”
[Doc. 34],1 the Court finds Petitioner’s motion as moot. Therefore, the motion to stay [Doc.
30] is hereby DENIED as moot.

1

In other words, Petitioner does not ask the Court to consider the facts of this case under
either Maples or Martinez.
2

Within Petitioner’s motion to stay, however, Petitioner asks the Court for permission
to brief the issue of procedural default and cause for excusing the same after the Supreme
Court rules on Maples and Martinez [Doc. 30]. In light of the recent rulings in Maples and
Martinez, the Court GRANTS this request. Petitioner shall have twenty-one (21) days from
entry of this order to brief this issue. Respondent shall have fourteen (14) days to respond,
and Petitioner shall have seven (7) days to reply.2
II.

Motion to Alter or Amend
Petitioner’s Rule 59(e) motion to alter or amend primarily concerns judicially noticed

testimony and facts set forth in the memorandum opinion accompanying the judgment order
in this case [See Doc. 31]. In its opinion, the Court took judicial notice of the evidentiary
hearing conducted in Petitioner’s federal habeas death penalty case, i.e., Sutton v. Bell, Case
No. 3:06-CV-388. As permitted by Fed. R. Evid. 201(b)(2), the Court summarized what it
considered to be the most pertinent parts of the testimony. Petitioner states, “[o]ut of an
abundance of caution, [he] moves to be heard on application of the evidentiary hearing to the
Sevier County case and submits the court may have overlooked the following[,]” wherein he
identifies four experts, including some of their credentials and testimony [Id.]. In addition,
Petitioner contends the judicially noticed proof demonstrates Petitioner is entitled to relief,

2

The Court notes that Petitioner moves the Court to alter or amend its previous opinion to
address the issues raised by Maples and Martinez [Doc. 31 pp. 7–9]. The Court accordingly
RESERVES RULING on this argument until it has considered the parties’ briefs on the issue of
procedural default and cause for excusing the same in light of Maples and Martinez.
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and he reargues his claim that counsel was ineffective for failing to investigate the victim’s
death in the Blount County case.
Respondent, in opposing the motion, cites to Henderson v. Walled Lake Consolidated
Schools, 469 F.3d 479 (6th Cir. 2006), contending Petitioner’s arguments amount to reargument of issues previously litigated—an action by Petitioner which is at odds with the
purpose of a motion to alter and amend. Additionally, Respondent points out that the only
grounds upon which a motion to alter or amend may be granted are: (1) an intervening
change in the controlling law; (2) newly discovered evidence; (3) to correct legal error; and
(4) to prevent manifest injustice, id. at 496, and that Petitioner’s arguments do not satisfy any
of these criteria.
A.

The Law

Respondent correctly identifies the scenarios in which a motion to alter or amend may
be granted; that is, when there is (1) an intervening change in the controlling law, (2) newly
discovered evidence, (3) a need to correct legal error, or (4) a need to prevent manifest
injustice. Henderson, 469 F.3d at 496. Courts have explained that granting a motion to alter
or amend a judgment is an extraordinary remedy that should be used sparingly. Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). In addition, such a motion is not to be
used in an effort to relitigate old matters, but rather “serves the narrow purpose of allowing
a party to correct manifest errors of law or fact or to present newly discovered evidence.”
Id. at 479 (citations and internal punctuation omitted).

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B.

Analysis

Pursuant to Rule 201(e) of the Federal Rules of Evidence, Petitioner “moves [the
Court] to be heard on application of the evidentiary hearing to the Sevier County case and
submits the court may have overlooked” certain evidence and testimony of which it took
judicial notice [Doc. 31]. Petitioner requests that the Court alter or amend its opinion to find
that he has demonstrated Strickland prejudice and grant the writ [Id.]. Considering
Petitioner’s motion in whole, the Court discerns that Petitioner is not contesting the propriety
of the Court taking judicial notice of the transcripts and exhibits from his federal habeas
death penalty evidentiary hearing, but is requesting that the Court now consider testimony
and evidence from the hearing that the Court did not cite in its memorandum dismissing his
petition in this case. This is not necessary, however, because the Court took judicial notice
of all the evidence presented in the evidentiary hearing, which includes the complete
transcripts and exhibits from the evidentiary hearing in Sutton v. Bell, Civil Case No. 3:06CV-388, Docs. 136 & 139, and considered the affidavits Petitioner submitted from two of
the witnesses who testified at that hearing.3
Petitioner also contends the Court’s prejudice analysis grossly departs from the
Strickland standard, which requires a showing of a “reasonable probability that the result of
the proceeding would have been different” [Id. (citing Strickland v. Washington, 466 U.S.
668, 694 (1984)]. As the Supreme Court has stated, “[a] reasonable probability is a

3

The Court considered the two affidavits even though they had not been presented to the state
post-conviction court.
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probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Petitioner argues the expert proof undermines the time line the State presented at the Sevier
County trial, thus altering the evidentiary picture presented to the Sevier County jurors. This
matter, as Respondent correctly contends, was throughly considered in this Court’s prior
decision [See Doc. 28]. Nonetheless, the Court will reiterate that the expert proof does not
undermine the State’s time line of Griffin’s death. The experts discussed the importance of
temperature in determining time of death, but none of the experts knew the temperature of
the location where the body was found during the time the State alleged it was there. None
of the expert opinion evidence negated the substantial circumstantial evidence and, when the
circumstantial evidence is considered along with the fact that the opinion evidence was based
on temperatures miles from the scene where the body was located, the State’s time line is not
undermined. As stated in the Court’s opinion dismissing Petitioner’s habeas petition:
Considering the expert witnesses’ testimony presented at the habeas
death penalty evidentiary hearing and during the trial of Mr. Griffin’s
murder, along with the circumstantial evidence of Mr. Griffin’s time of
death, the Court can not conclude that Petitioner suffered any prejudice
as a result of trial counsels’ failure to investigate Griffin’s murder. This
is so because the new expert testimony does not weaken, in any way
whatsoever, the circumstantial evidence pointing to Petitioner’s guilt;
all it does is contradict the State’s time-of-death testimony and support
the defenses’ expert’s time-of-death testimony–both of which the jury
heard during the Griffin murder trial when it found Sutton and
Dellinger guilty of his murder. Although it is true that, at the time of
trial, the credentials of the State’s trial expert outweighed the
credentials of the defenses’ trial expert, and the State’s trial expert was
subsequently stripped of his medical license, the fact of the matter is,
all the circumstantial evidence support’s the state’s theory of Griffin’s
time of death and none of the circumstantial evidence supports the
defenses’ theory. Moreover, this new expert testimony does not
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demonstrate that the time-of-death opinion of the State’s trial expert
was incorrect.
[Id.].
Petitioner additionally claims the Court “concluded that because Mr. Sutton was
convicted in Blount County, where there was scientific proof introduced, there was no
prejudice to Mr. Sutton in the Sevier County case” [Doc. 31]. Petitioner, however,
misinterprets the Court’s conclusion. What the Court concluded was that Petitioner did not
demonstrate prejudice because he did show that, but for counsel’s failure to investigate
Griffin’s death, there is a reasonable probability that the result of his trial would have been
different and his jury verdict is not worthy of confidence.
Petitioner further claims Dr. Harlan’s testimony should be wholly discounted, but
doing so does not aid Petitioner’s case. Even discounting Dr. Harlan’s testimony, the weight
of the experts’ testimony was heavily based upon the temperature the body was exposed to
after death in locations miles away and does not weaken the other substantial circumstantial
evidence implicating Petitioner in the crime.
Finally, Petitioner suggests the Court independently determined guilt. The Court,
however, did not independently determine Petitioner’s guilt. Rather, the Court considered
the affidavits of Petitioner’s experts in addition to the testimony and exhibits presented in his
federal habeas death penalty evidentiary hearing to reach a conclusion as to whether the
Court’s confidence in the outcome of his jury trial in this case was undermined. The Court
concluded it was not.

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In sum, as Respondent points out, Petitioner attempts to relitigate previously
considered issues, but such arguments are more properly brought before the United States
Court of Appeals for the Sixth Circuit. Even so, the Court finds that none of Petitioner’s
arguments persuade the Court that it should alter or amend its prior ruling on this claim.
Accordingly, Petitioner’s motion to alter or amend is hereby DENIED [Doc. 31], except that
the Court RESERVES RULING on Petitioner’s request to alter or amend in light of Maples
and Martinez, as discussed, supra, in footnote 2.
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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