Narramore v. Director, TDCJ-CID

Filing 44

MEMORANDUM OPINION and ORDER - Petitioners Verified Motion for New Trial or to Alter, or to Vacate Judgment (docket entry #39), construed under Fed. R. Civ. P. 59(e), is hereby DENIED. Signed by Judge Rodney Gilstrap on 6/13/12. (ehs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
GREGORY SCOTT NARRAMORE

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 2:09cv63

MEMORANDUM OPINION AND ORDER ON PETITIONER’S
MOTION FOR NEW TRIAL OR TO ALTER, OR TO VACATE JUDGMENT
Came on for consideration, Petitioner’s Motion pursuant to Fed. R. Civ. P. 59. Having given
the motion due consideration, the Court herein denies it.
I.

BACKGROUND
Petitioner was convicted on October 13, 2005, of one count of murder. The jury sentenced

Petitioner to eighty years’ incarceration in the Texas Department of Criminal Justice. His conviction
was affirmed on direct appeal by the Sixth Court of Appeals on March 20, 2007. See Narramore
v. State, 2007 WL 817302 (Tex. App. - Texarkana, Mar. 20, 2007, pet. ref’d). The Texas Court of
Criminal Appeals refused Petitioner’s petition for discretionary review in case number PD-0567-07
on August 22, 2007. See In re Narramore, 2007 Tex. Crim. App. LEXIS 1010, at *1 (Tex. Crim.
App. Aug. 22, 2007). He did not file a petition for writ of certiorari to the United States Supreme
Court. Petitioner then filed a state petition for writ of habeas corpus on September 15, 2008. SHCR,
at 31-137. This application was denied without written order on December 17, 2008. He then filed
his federal petition for writ of habeas corpus pursuant to 28 U.S.C. § in this Court. The assigned
Magistrate Judge issued a Report and Recommendation that the petition be denied and Petitioner
filed objections. The Court overruled Petitioner’s objections on de novo review, adopted the

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Magistrate Judge’s Report and Recommendation and denied Petitioner’s petition with final judgment
entered on March 27, 2012 (docket entries #37, 38). Petitioner now brings his instant motion,
entitled “Petitioner’s Verified Motion for New Trial or to Alter, or to Vacate Judgment” (docket
entry #39). He explicitly invokes Fed. R. Civ. P. 59 in support of his motion. See Motion at 1.
Rule 59 of the Federal Rules of Civil Procedure addresses the procedures governing a request
for “New Trial; Altering or Amending a Judgment.” In this case, there has been no trial in this
Court, only a review of Petitioner’s habeas petition, the records of his case, and the papers filed by
the Respondent Director of the Texas Department of Criminal Justice, Correctional Institutions
Division (TDCJ-CID or TDCJ). Further, Petitioner’s motion does not request a trial but simply
addresses his request to vacate, alter or amend the Court’s judgment on his habeas petition and to
enter a different judgment accordingly. Therefore, the Court will construe Petitioner’s motion only
under that portion of Rule 59 dealing with a motion to alter or amend a judgment, namely, Fed. R.
Civ. P. 59(e).
II.

STANDARD
A motion to alter or amend a judgment pursuant to Rule 59(e) “‘calls into question the

correctness of a judgment.’” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting
In Re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A Rule 59(e) motion 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. at 479 (citing Simon v. United States, 891 F.2d 1154, 1159
(5th Cir. 1990)). Instead, “Rule 59(e) ‘serve[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.’” Id. (quoting Waltman v.
Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). “Relief under Rule 59(e) is also appropriate
when there has been an intervening change in the controlling law.” Schiller v. Physicians Resource
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Grp., 342 F.3d 563, 567 (5th Cir. 2003). A Rule 59(e) motion may also be interpreted as covering
motions to vacate judgments. See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355
(5th Cir 1993). Altering, amending, or reconsidering a judgment is an extraordinary remedy that
courts should use sparingly. Templet, 367 F.3d at 479 (citing Clancy v. Employers Health Ins. Co.,
101 F. Supp. 2d 463, 465 (E.D. La. 2000)). In any event, “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Here,
Petitioner has certified that he placed his motion in the prison mail system on April 22, 2012,
meaning it was effectively filed on that date. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.
1998). That is within 28 days of final judgment in this case. Therefore, Petitioner’s Rule 59(e)
motion is timely.
III.

DISCUSSION AND ANALYSIS
Petitioner’s motion does little more than rehash the evidence and legal theories he has already

raised with regard to two of his claims. He has offered nothing new in any of his arguments, except
to assert that the record of this case as presented to the Court must be incomplete because it is
contained in “one small box” as stated on the docket.
A.

Sufficiency Of The Evidence Claim

Petitioner first re-raises his sufficiency of the evidence claim. See Motion at 2. There, he
first asserts that the Court has not independently reviewed the record of the case, but has relied on
the findings of the Sixth Court of Appeals in its decision on his direct appeal. Id. at 2-3. Petitioner
misapprehends the nature of a habeas review in federal court. While a federal court must review the
record of a case, as this Court has done in this case, the standard on habeas review is to determine
whether the adjudication of a petitioner’s claims by the state court either resulted in a decision that
was contrary to established federal law (see Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.), cert.
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denied 537 U.S. 953, 123 S. Ct. 420, 154 L. Ed. 2d 300 (2002); 28 U.S.C. § 2254(d)(1)) or resulted
in a decision based on an unreasonable determination of the facts (see Riddle, 288 F.3d at 716; 28
U.S.C. § 2254(d)(2)). Thus, the Court must necessarily discuss and consider the state court’s
reasoning as well as the records to the extent they are needed to determine whether the state court’s
decision was contrary to established federal law or was unreasonable in the light thereof. In this
case, that includes the reasoned opinion of the Sixth Court of Appeals on direct appeal, which was
adopted by the Texas Court of Appeals by its refusal of Petitioner’s petition for discretionary review.
Here, however, Petitioner specifically argues that this Court must not have reviewed the full
record of the case because the docket reflects that the state only filed “[o]ne small box of paper
documents with two disk” for the Court’s use. See Motion at 4; docket at entry on April 14, 2009.
He contends that this could not possibly have contained the “voluminous” trial record, consisting
of “over 6 volumes of Reporter’s Record as well as the Clerk’s Record.” Motion at 4. However,
the Court is confident that the full record is contained in the box provided by the Texas Attorney
General on behalf of the Director. First, whether the box is “small” is a matter of perception. It is
about the size of a standard “banker’s box” of documents, more or less. Second, the box contains
all of the Reporter’s Records and Clerk’s Records to which Petitioner refers, along with other filings
including post-conviction records of Petitioner’s direct appeal and state habeas filings. To the extent
he is concerned about the “voluminous” Reporter’s Records, they are represented in miniature
format, in which four pages of the record transcript are reproduced in reduced format on each
standard size page. While this may make the print size of the individual reduced-size pages smaller,
they are abundantly clear and readable. In fact, the Magistrate Judge cited various volumes of the
Reporter’s Record several times in the R&R, including at page 5 n.5, defining the use of, for
example, a citation to “2RR” as “Reporter’s Record, or trial transcript, preceded by the volume
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number.” The Magistrate Judge also cited the Clerk’s Record, or “CR.” See, e.g., R&R at 13. Thus,
Petitioner’s contention that the full record was not before the Court, including all of the Reporter’s
Record and Clerk’s Record, is simply untrue.
Petitioner also argues that the docket shows that the state records were sent to the Tyler
Division of this Court. That is true, but it does not affect their availability to the Court. Instead, they
were merely stored at that location for ease of access during research. His contention is without
merit.
He next asserts that the Court did not properly apply the Texas “acted in concert” law. In this
case, he has essentially repeated the argument he raised in his original filings and in his objections
to the Magistrate Judge’s Report and Recommendations. Petitioner explicitly focuses on and cites
a passage from the Report and Recommendations in which the Magistrate Judge analyzed Tex. Pen.
Code §§ 7.01 and 7.02. Having quoted both statutes, the Magistrate Judge stated:
Therefore, under Texas law, simply acting in concert with another person is sufficient to
allow a person to be charged with and held criminally responsible for the criminal offense
of that other person.
See Report and Recommendation at 17 (citing Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim.
App. 2006)). Petitioner argues, “That is not the law . . . ,” but he offers no other explanation or
authority for his position. Motion at 5. However, it is the law under the Texas Penal Code, as
interpreted by the Texas courts. “[P]ursuant to Tex. Penal Code §§ 7.01 and 7.02, the law in Texas
allows individuals to be charged as a party to an offense and to be held criminally responsible for
the conduct of another when that individual acts in concert with another person in committing an
offense.” See Powell, 194 S.W.3d at 506. In fact, the Sixth Court of Appeals relied on Powell in
arriving at the same conclusion on Petitioner’s direct appeal. See Narramore, 2007 WL 817302, at
*2. A federal court must defer to a state court’s interpretation of its state law. See Arnold v.
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Cockrell, 306 F.3d 277, 279 (5th Cir 2002) (per curiam). Therefore, this contention is also without
merit.
B.

Ineffective Assistance Of Counsel Claim

In this contention, Petitioner again argues, with little variation, his claim that counsel was
ineffective for failing to hire an expert for the sole purpose of investigating his case as opposed to
hiring an expert witness for the purpose of testifying at trial. The Court has reviewed this claim in
detail and Plaintiff has offered nothing new to add. To the extent that he contends that his petition
was not given a liberal construction by the Court, he is mistaken. Every aspect of his petition was
fully considered. This contention is without merit.
C.

Request For Evidentiary Hearing

Finally, Petitioner requests an evidentiary hearing to present the record he contends must not
be included in the “small box” provided by the state; evidence already considered in this case; and
“evidence the Magistrate claimed Petitioner did not present.” There is no requirement for an
evidentiary hearing in this case. See Rule 8(a) of the Rules Governing Section 2254 Cases in the
United States District Courts (“[i]f the petition is not dismissed, the judge must review the answer,
any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 to
determine whether an evidentiary hearing is warranted.”).

The petition in this case has been

dismissed; the Court has already determined that the state records are complete; Petitioner’s prior
request for evidentiary hearing has been denied and he has presented no basis for reversing that
denial now; and he has not identified any evidence that the “Magistrate claimed Petitioner did not
present.” Therefore, his motion for an evidentiary hearing will be denied.
IV.

CONCLUSION
Petitioner has not shown cause to vacate, alter or amend the judgment in this case. It is
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accordingly
ORDERED that Petitioner’s Verified Motion for New Trial or to Alter, or to Vacate
Judgment” (docket entry #39), construed under Fed. R. Civ. P. 59(e), is hereby DENIED.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 13th day of June, 2012.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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