Harris v. Easterling

Filing 38

ORDER DENYING MOTION 34 TO SET ASIDE JUDGMENT AND DENYING MOTION 37 FOR RECONSIDERATION. Signed by Judge S. Thomas Anderson on 9/27/2016. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JARVIS HARRIS,
Petitioner,
v.
GRADY PERRY,
Respondent.

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Case No. 2:12-cv-02668-STA-dkv

ORDER DENYING PETITIONER’S MOTIONS FOR RELIEF FROM JUDGMENT
Before the Court are the Motion for Relief from Judgment (“First Motion for Relief from
Judgment”) filed on behalf of Petitioner, Jarvis Harris, Tennessee Department of Correction
prisoner number 400198, an inmate at the Hardeman County Correctional Facility (“HCCF”) in
Whiteville, Tennessee, on February 11, 2016 and the Motion for Relief from Judgment (“Second
Motion for Relief from Judgment”) that was filed on March 14, 2016. (1st Mot. for Relief from
J., ECF No. 34; 2d Mot. for Relief from J., ECF No. 37.) For the reasons stated below, the Court
DENIES the pending motions.
I.

PROCEDURAL HISTORY
On July 30, 2012, Harris filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus by a Person in State Custody (“§ 2254 Petition”), accompanied by a legal memorandum.
(§ 2254 Pet., ECF No. 1; Mem. of Law in Supp. of § 2254 Pet., ECF No. 1-1.) The § 2254
Petition presented the following issues:

1.

“Whether the trial court erred by its denial of petitioner’s pretrial motion to
suppress the evidence?” (§ 2254 Pet. at PageID 5, ECF No. 1; see also
Mem. of Law in Supp. of § 2254 Pet. at 4-7, ECF No. 1-1);

2.

“Whether prosecution’s references to petitioner as a gang member and other
related gang inferences they-so [sic] prejudice the jury as to deny petitioner
a fair trial?” (§ 2254 Pet. at PageID 7, ECF No. 1; see also Mem. of Law in
Supp. of § 2254 Pet. at 8-10, ECF No. 1-1);

3.

“Whether the trial court erred in not suppressing petitioner’s April 16, 2002
confession” (§ 2254 Pet. at PageID 8, ECF No. 1); and

4.

“Whether the petitioner was denied of [sic] effective assistance of counsel
during the subsequent trial and appellate proceedings against him?” (id. at
PageID 10; see also Mem. of Law in Supp. of § 2254 Pet. at 11-17, ECF No.
1-1).

The Court issued an order on September 28, 2015, that, inter alia, dismissed Claims 1
through 3. (Order, ECF No. 26.) The Order noted that “Harris has potentially viable ineffective
assistance of trial counsel and ineffective assistance of appellate counsel claims that have not been
squarely addressed by the state courts.” (Id. at 35.) Specifically, the Court noted that Harris had
a potentially meritorious claim that he was arrested in violation of the Fourth Amendment but that
trial counsel and post-conviction counsel had not raised the issue despite Harris’s persistent
attempts to bring the issue to counsels’ attention. (Id. at 35-40.) The Order observed that “[i]t is
unclear . . . whether Harris properly exhausted an ineffective assistance of trial counsel claim
based on counsel’s failure properly to litigate the Fourth Amendment issue. It is also unclear

2

whether that failure can be excused on the basis of the Supreme Court’s decisions in Martinez v.
Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013).” (Id. at 40-41.)
The Order concluded that “it is in the interest of justice to appoint counsel in this matter to
represent Harris with respect to that portion of Claim 4 that addresses the handling by trial and
appellate counsel of the Fourth Amendment issue arising from Harris’ arrest.” (Id. at 41.) The
matter was referred to Chief United States Magistrate Judge Diane K. Vescovo to determine
whether Harris qualified for appointed counsel. (Id.) Harris was directed to file an in forma
pauperis affidavit and a copy of his inmate trust fund account statement. (Id.)
On October 20, 2015, Harris filed the required documents. (Appl. to Proceed in District
Court Without Prepaying Fees or Costs (Short Form), ECF No. 27.) On October 29, 2015,
Magistrate Judge Vescovo found that Harris qualified for appointed counsel and directed that
counsel be appointed from the Criminal Justice Act panel. (Order, ECF No. 28.) On November
4, 2015, Marty B. McAfee was appointed to represent Harris. (Appointment of and Authority to
Pay Court Appointed Counsel, ECF No. 29.)
The Court issued an order on December 10, 2015, directing that, “within twenty-eight days
of the date of entry of this order, Harris, through counsel, file any amendment to his § 2254
Petition that may be necessary pertaining to the ineffective-assistance claim and a legal
memorandum.” (Order at 2, ECF No. 30.) The Warden was invited to “file a supplemental
answer addressing this issue twenty-eight days after the filing of Harris’ amendment and
memorandum.” (Id. at 2-3.) Harris failed to comply with, or otherwise respond to, this Order.
In an order issued on January 14, 2016, Harris, through his appointed attorney, was
instructed to advise the Court within three business days whether he intended to file a

3

supplemental memorandum and to explain why he was unable to follow the deadline that was set.
(Order at 1, ECF No. 31.) Harris was cautioned that a “[f]ailure to timely respond to this order
may constitute a waiver of the right to file a supplemental memorandum.” (Id.) Harris did not
respond to that Order.
In an order issued on February 10, 2016, the Court held that, by failing to respond to the
previous orders, Harris had waived his right to file an amendment and supplemental memorandum.
(Order at 5, ECF No. 32.) The Order dismissed Claim 4, holding that virtually every sub-claim
was barred by procedural default and that the state-court decision on the one sub-claim that had
been properly exhausted was not contrary to or an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), and was not based on an objectively unreasonable factual
determination. (Id. at 5-20.) The Order also denied a certificate of appealability. (Id. at 21.)
Judgment was entered on February 10, 2016. (J. in a Civil Case, ECF No. 33.)
On February 11, 2016, Harris, through counsel, filed his First Motion for Relief from
Judgment, which sought relief under Rules 60(b)(1) and (6) of the Federal Rules of Civil
Procedure. (1st Mot. for Relief from J., ECF No. 34.)

That motion asked the Court to “strike its

judgment” and extend Harris’s time to file a supplemental memorandum and amendment. (Id. at
PageID 1422.) McAfee explained that the ECF notices of the Court’s previous orders had been
delivered to his inbox but that his assistant erroneously assumed they had been sent in error and did
not bring them to his attention. (Id.) Respondent filed a response in opposition to the motion on
February 12, 2016. (Resp. in Opp’n to 1st Mot. for Relief from J., ECF No. 35.)

4

In an order issued on February 29, 2016, the Court denied relief under Rule 60, reasoning
that McAfee’s failures to respond to the Court’s orders did not constitute “excusable neglect”
under Rule 60(b)(1). (Order at 3-4, ECF No. 36.) The Order also stated as follows:
However, Harris may be entitled to relief under Federal Rule of Civil
Procedure 59(e) which provides for motions to alter or amend judgment. Relief
under Rule 59(e) is available to correct a clear error of law, on the basis of newly
discovered evidence or an intervening change in the law, or to prevent manifest
injustice. Despite the absence of excusable neglect in this matter, there are other,
more compelling concerns that the Court believes may justify relieving Harris from
the consequences of his counsel’s inaction. This case involves a § 2254 Petition
and, thus, Harris’s liberty. Additionally, the Court previously determined that
Harris should be given the opportunity, through counsel, to further expound on and
clarify the circumstances surrounding Claim 4 as set for[th] in the pro se Petition.
While the Court believes that it has fully adjudicated and addressed Claim 4 on the
merits in its Order, (ECF No. 32), it is possible that Harris may be able to convince
the Court otherwise.
Counsel shall have fifteen (15) days from the entry of this order in which to
file a Memorandum of Law and any supporting documentation that counsel
believes would contradict or justify reconsideration of the Judgment that has
already been entered. The Respondent shall not be required to respond unless
ordered to do so by the court. After reviewing the memorandum, the Court will
determine whether Harris’s motion for relief from judgment should be granted to
prevent manifest injustice.
(Id. at 4-5 (internal quotation marks and footnote omitted).)
On March 14, 2016, Harris filed his Second Motion for Relief from Judgment, supported
by a legal memorandum. (2d Mot. for Relief from J., ECF No. 37; Mem. of Law in Supp. of 2d
Mot. for Relief from J., ECF No. 37-1.)
II.

THE LEGAL STANDARD
“To grant a motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,

there must be (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice.” Betts v. Costco Wholesale Corp.,

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558 F.3d 461, 474 (6th Cir. 2009) (internal quotation marks omitted). The Sixth Circuit has
repeatedly held that “Rule 59(e) motions cannot be used to present new arguments that could have
been raised prior to judgment. Rule 59(e) allows for reconsideration; it does not permit parties to
effectively re-argue a case.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (internal
quotation marks and citations omitted).
Here, Harris seeks relief on the basis of manifest injustice.
Although the “manifest injustice” ground for a Rule 59(e) motion appears
to be a catch-all provision, it is not meant to allow a disappointed litigant to attempt
to persuade the Court to change its mind. Instead, whether manifest injustice
would result from denying a Rule 59(e) motion is, by definition, a fact-specific
analysis that falls squarely within the discretionary authority of the Court. In
exercising this discretion, the Court should weigh the importance of bringing
litigation to a firm conclusion and the need to render fair and just rulings.
Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 809 (N.D. Ohio 2010) (citations omitted).
A movant seeking Rule 59(e) relief must be able to show “an error in the trial court
that is direct, obvious, and observable....” Cummings, Inc. v. BP Products North
America, Inc., 2009 WL 3169463, *2 (M.D. Tenn. 2009). The movant must also
be able to demonstrate that the underlying judgment caused them some type of
serious injustice which could be avoided if the judgment were reconsidered.
Essentially, the movant must be able to show that altering or amending the
underlying judgment will result in a change in the outcome in their favor. Via The
Web Designs, L.L.C. v. Beauticontrol Cosmetics, Inc., 148 Fed. Appx. 483, 489
(6th Cir. 2005); Campbell v. Credit Bureau Systems, Inc., 2009 WL 3429095 (E.D.
Ky. 2009). A party may not seek Rule 59(e) relief on the premise of “manifest
injustice” if the only error the movant seeks to correct is a “poor strategic decision.”
GenCorp., 178 F.3d at 834. “Generally, relief under Rule 59(e) is an
‘extraordinary remedy’ restricted to those circumstances in which the moving party
has set forth facts or law of a ‘strongly convincing nature’ that indicate that the
court’s prior ruling should be reversed.” Cummings, 2009 WL 3169463 at *2.
Essentially, “a showing of manifest injustice requires that there exists a
fundamental flaw in the court’s decision that without correction would lead to a
result that is both inequitable and not in line with applicable policy.” McDaniel v.
American General Fin’l. Servs., Inc., 2007 WL 2084277, *2 (W.D. Tenn. 2007).

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In re Henning, 420 B.R. 773, 785 (Bankr. W.D. Tenn. 2009). “As found in Black’s Law
Dictionary, a manifest injustice is defined as ‘[a]n error in the trial court that is direct, obvious and
observable such as a defendant’s guilty plea that is involuntary....’” McDaniel v. Am. Gen. Fin.
Servs., Inc., No. 04-2667-B, 2007 WL 2084277, at *2 (W.D. Tenn. July 17, 2007) (additional
internal quotation marks and citation omitted).
III.

ANALYSIS
Harris has not satisfied his burden of demonstrating that he is entitled to relief under Rule

59(e) to prevent a “manifest injustice.”1 Specifically, Harris has failed to show that granting
relief under Rule 59(e) would change the outcome of the proceeding. The February 10, 2016
Order itemized the ineffective assistance claims in Harris’s § 2254 Petition (Order at 5-6, ECF No.
32), concluded that the claims addressing the performance of trial counsel were barred by
procedural default (id. at 6-7) and that that default could not be overcome through the Supreme
Court’s decisions in Martinez and Trevino (id. at 8, 9-10). The Order also concluded that Harris
failed properly to exhaust his claim that appellate counsel was ineffective in failing to raise on
direct appeal the Fourth and Fifth Amendment issues that were not presented in the motion for a
new trial and that that default could not be overcome. (Id. at 10-13.)
Harris’s Second Motion for Relief from Judgment does not address the claims asserted in
the § 2254 Petition or the Court’s analysis of those claims with any specificity. Instead, he has
referenced various pages in his post-conviction petition and brief to the TCCA on the
1

A Rule 59(e) motion must be filed “no later than 28 days after the entry of judgment,”
which, in this case, was March 9, 2016. The Court may not extend the time within which to file a
Rule 59(e) motion, Fed. R. Civ. P. 6(b)(2), and any attempt to do so is invalid, see Rhoden v.
Campbell, 153 F.3 773 (6th Cir. 1998) (per curiam). A Rule 59(e) motion submitted on March
14, 2016, would be untimely. The Court has, however, construed the February 11, 2016, filing as
seeking relief under Rule 59(e).
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post-conviction appeal “to establish that the issue was previously raised during state proceedings.”
(2d Mot. for Relief from J. at PageID 1436, ECF No. 37.) Although the motion is not entirely
clear, it appears that Harris is challenging the Court’s holding that he did not exhaust a claim that
his trial counsel mishandled the Fourth Amendment issue. (See id.) Counsel argues, in the
alternative, that “[e]ven if Petitioner had not litigated this issue exhaustively, this Court should
consider whether Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911
(2013), excused this failure to litigate the issue.” (Id.)
A.

Harris Did Not Exhaust a Claim that Trial Counsel Mishandled the Fourth
Amendment Issue

Counsel argues that Harris properly exhausted a Fourth Amendment claim that he was
arrested without probable cause. In evaluating counsel’s argument, it is important to recall that a
habeas petitioner properly exhausts a federal claim by presenting that claim to the state trial court
and to the Tennessee Court of Criminal Appeals (“TCCA”). (See Order at 14, ECF No. 26.)
The citations supplied by Harris do not persuade the Court that he is entitled to relief from
judgment.

Although counsel is correct that Harris’s original and amended post-conviction

petitions have raised Fourth Amendment issues (see Pet. for Post-Conviction Relief at PageID
935, Harris v. State, No. 03-00441 (Shelby Cnty. Crim. Ct.), ECF No. 15-15 at PageID 935; Am.
Post-Conviction Pet. for Relief at PageID 986, id., ECF No. 15-15), those allegations were not
contained in an ineffective-assistance claim. These citations do not undermine the Court’s
conclusion (Order at 6, ECF No. 32) that Harris’s post-conviction petitions do not allege that trial
counsel mishandled the Fourth Amendment issue by failing to argue that Harris had been arrested
without probable cause. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (“It is not

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enough that all the facts necessary to support the federal claim were before the state courts, or that
a somewhat similar state-law claim was made.”).
This conclusion is not undermined by Harris’s statement that “the post-conviction court
acknowledged that Petitioner raised this Fourth Amendment issue because the court listed this as a
ground in the post-conviction court’s order denying relief.” (Mem. of Law in Supp. of 2d Mot.
for Relief from J. at PageID 1437, ECF No. 37-1.) In determining whether a prisoner has “fairly
presented” a claim to the state courts, a federal habeas court should look to the petition and the
inmate’s brief, not a state-court opinion. Baldwin v. Reese, 541 U.S. 27, 32 (2004) (“[O]rdinarily
a state prisoner does not “fairly present” a claim to a state court if that court must read beyond a
petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in
order to find material, such as a lower court opinion in the case, that does so.”).2
Even if it were assumed that Harris fairly presented to the post-conviction court the claim
that trial counsel failed to argue that he had been arrested without probable cause, Harris failed to
include the issue in his pro se brief on the post-conviction appeal. Instead, as the February 10,
2016 Order found, “Harris argued in his brief to the TCCA that trial counsel failed to call Bass to
testify at trial . . . . .” (Order at 7, ECF No. 32.) Counsel argues that Harris’s pro se brief
includes other aspects of the Fourth Amendment issue, although it was styled as a sufficiency
argument. (See Mem. of Law in Supp. of 2d Mot. for Relief from J. at PageID 1437, ECF No.
37-1.) This is neither accurate nor relevant. The statement cited by counsel appears in a section
2

Moreover, Harris has, again, cited to a Fourth Amendment claim, not to an ineffective
assistance of trial counsel claim. (See Order Denying Pet. for Post-Conviction Relief at 3, Harris
v. State, No. 03-00441 (Shelby Cnty. Crim. Ct.), ECF No. 15-15 at PageID 1074.) The only
Fourth Amendment ineffective assistance claim addressed by the post-conviction court was
whether trial counsel rendered ineffective assistance by failing to call Officer Bass as a witness at
the suppression hearing and at trial. (Id. at 6.)
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of the brief titled, “The Trial court abused its discretion ruling the Evidence was sufficient to
support the defendant’s presumption of guilt convictions of First Degree Premeditated murder and
First Degree Murder Beyond A Reasonable Doubt.” (Br. of Appellant at PageID 1173, Harris v.
State, No. W2010-02848-CCA-R3-PC (Tenn. Crim. App.), ECF No. 15-18.) Counsel has also
taken the quoted language out of context. The sentence at issue reads: “There is absolutely no
testimony or evidence from anyone that could establish Probable Cause to arrest and have a grand
jury return formal indictments where Eric Cooper statements are arbitrarily unreasonable
and relied upon as a criminal informant.” (Id. (emphasis added).) Finally, for the reasons
previously stated, see supra pp. 8-9, raising a substantive Fourth Amendment claim is not
sufficient to exhaust a Sixth Amendment claim that counsel mishandled a Fourth Amendment
issue. Therefore, Harris did not “fairly present” to the state courts his claim that his trial counsel
failed to argue that he was arrested without probable cause in violation of the Fourth Amendment.3
Moreover, counsel fails to address the implications of a holding that Harris did properly
exhaust a claim that his trial counsel mishandled the Fourth Amendment issue. “When a federal
claim has been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication or state-law
3

The Court fails to understand counsel’s argument that, “[d]espite having raised these
issues [in the post-conviction petitions], the record does not establish that the issues were litigated
during the post-conviction hearing.” (Mem. of Law in Supp. of 2d Mot. for Relief from J. at
PageID 1437, ECF No. 37-1.) Counsel has the facts exactly backward. At the post-conviction
hearing, Harris testified at length to his belief that he was arrested in violation of the Fourth
Amendment and that his trial counsel mishandled that issue at the suppression hearing and motion
for a new trial. (See 05/20/2010 Post-Conviction Hr’g Tr. 24-25, 26-27, 28-29, Harris v. State,
No. 03-00441 (Shelby Cnty. Crim. Ct.), ECF No. 15-16.) Harris also complained that his
attorney failed to raise the issue on direct appeal. (Id. at 27-28.) The Court’s order referring the
matter for appointment of counsel made this point. (See Order at 35, 40, ECF No. 26.)
Post-conviction counsel failed to file a motion to amend the post-conviction petition to incorporate
that issue, and he failed to question trial and appellate counsel about their handling of the issue.
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procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). In Cullen
v. Pinholster, the Supreme Court found an ineffective-assistance claim to have been adjudicated
“on the merits” where the claim had been included in both of the prisoner’s state habeas petitions,
each of which the California Supreme Court had denied “on the substantive ground that it is
without merit.” 563 U.S. 170, 187 (2011) (internal quotation marks omitted). The Supreme
Court explained that § 2254(d) “applies even when there has been a summary denial. In these
circumstances, [a habeas petitioner] can satisfy the ‘unreasonable application’ prong of §
2254(d)(1) only by showing that there was no reasonable basis for the [state court’s] decision.”
Id. at 187-88 (additional internal quotation marks and citation omitted); see also Richter, 562 U.S.
at 98 (“Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to deny
relief.”).
Here, the TCCA concluded that “[t]he petitioner also makes myriad other, barely
intelligble claims regarding the efficacy of his trial and appellate counsel. We note that the
petitioner simply failed to establish that either trial or appellate counsel performed deficiently in
any way.” Harris v. State, No. W2010-01848-CCA-R3PC, 2011 WL 3629230, at *5 (Tenn.
Crim. App. Aug. 18, 2011). Counsel has failed to argue that there was no reasonable basis for the
TCCA’s decision. Without proof that the outcome of this case would change, there is no manifest
injustice warranting relief under Rule 59(e).
B.

Given the Posture of the Case, the Decisions in Martinez and Trevino Do Not
Help Harris

Although counsel argues, in the alternative, that Harris might be entitled to relief under
Martinez and Trevino “if Petitioner had not litigated this issue exhaustively” (Mem. of Law in
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Supp. of 2d Mot. for Relief from J. at PageID 1436, ECF No. 37-1), the argument is unsupported.
Counsel cites no authority for the proposition that Martinez and Trevino apply where a claim was
properly raised in a post-conviction petition but counsel chose not to present evidence at the
evidentiary hearing. The typical fact pattern for a Martinez issue involves the complete failure to
present an issue in a post-conviction petition.
Moreover, counsel fails to address the fact that, even if he is correct that Harris fairly
presented his claim to the post-conviction court, Martinez and Trevino do not apply to claims that
were not raised in a post-conviction appeal. (See Order at 9-10, ECF No. 32.)
C.

Harris is not Entitled to Amend his § 2254 Petition to Raise a Fourth
Amendment Ineffective Assistance of Trial Counsel Claim

In its Order issued on December 10, 2015, counsel was directed to file any amendment to
his § 2254 Petition that may be necessary pertaining to the Fourth Amendment ineffective
assistance claim. (Order at 2, ECF No. 30.) Harris’s § 2254 Petition does not argue that trial
counsel rendered ineffective assistance by failing to argue during the motion to suppress that
Harris was arrested without probable cause in violation of the Fourth Amendment. (See Order at
5-6, ECF No. 32.) Counsel did not file an amendment incorporating that claim.4 Because he
failed to file an amendment prior to the entry of judgment, he is now barred from doing so.5

4

Had he done so, counsel could have cited Martinez and Trevino for the proposition that
post-conviction counsel was ineffective in failing to move to amend the post-conviction petition to
include that claim after Petitioner’s testimony at the post-conviction hearing. Counsel also could
have argued that the amendment was timely because it related back to the filing of the original §
2254 Petition.
5

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a court should freely grant
leave to amend “when justice so requires.” “When a party seeks to amend a complaint after an
adverse judgment, it thus must shoulder a heavier burden. Instead of meeting only the modest
requirements of Rule 15, the claimant must meet the requirements for reopening a case established
by Rules 59 or 60.” Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612,
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E.

Harris has Abandoned his Ineffective Assistance of Appellate Counsel Claim

Harris’s § 2254 Petition presented a claim that appellate counsel rendered ineffective
assistance by not raising the Fourth Amendment issues that were not included in the motion for a
new trial, including the alleged arrest without probable cause. (See Order at 10-11, ECF No. 32.)
Counsel makes no argument that he is entitled to relief from judgment on that claim and, therefore,
it has been abandoned.
* * * *
For the foregoing reasons, the Court DENIES Harris’s Motions for Relief from Judgment.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: September 27, 2016

616 (6th Cir. 2010); see also In re Ferro Corp. Derivative Litig., 511 F.3d 611, 624 (6th Cir. 2008)
(“Plaintiffs wholly fail to appreciate that because the district court dismissed this action, the court
must first reopen their case in order to grant leave to conduct discovery or permit them to submit an
amended complaint.”). Here, counsel has failed to demonstrate that the decision dismissing
Claim 4 was incorrect and, therefore, he cannot amend to assert any new claim.
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