Segundo v. Davis, Director TDCJ-CID

Filing 70

MEMORANDUM OPINION AND ORDER ON POST-JUDGMENT MOTIONS: The Court grants the motion to amend incorrect language in the memorandum opinion and order, but denies that portion of the motion requesting additional findings, and denies the additional an d supplemental motions. This correction does not change the outcome in any way. The judgment previously entered in this case to deny relief is otherwise correct. The motion to amend or correct (doc. 55 ) is GRANTED in part and DENIED in part. The language on page 8 of the memorandum opinion and order denying relief (doc. 48 ) stating that "Dr. Hopewell administered the Wechsler Adult Intelligence Scale, Version III ('WAIS III'), and the 'RBANS' test, and testified that Segundo's intelligence quotient ('IQ') result was in the borderline range for intellectual disability but, significantly, that Segundo was not considered intellectually disabled," is AMENDED. It will now read as follows: &quo t;Dr. Hopewell reviewed the Wechsler Adult Intelligence Scale, Version III ('WAIS III'), and the 'RBANS' test administered by Dr. Goodness. Dr. Hopewell testified that Segundo's intelligence quotient ('IQ') result w as in the borderline range for intellectual disability but, significantly, that Segundo was not considered intellectually disabled." The remainder of Segundo's motion is DENIED. The motion for leave to consider newly discovered evidence und er Federal Rules of Civil Procedure 59 and 60(b)(1) (doc. 56 ) is DENIED.The supplemental post-judgment motion for leave to consider newly discovered evidence under Federal Rules of Civil Procedure 59 and 60(b)(1) (doc. 62 ) is DENIED. Because the resolution of these motions does not change the outcome of these proceedings, this Court's judgment denying relief remains intact. (Ordered by Judge Terry R Means on 12/7/2015) (tln)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JUAN RAMON MEZA SEGUNDO,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:10-CV-970-Y
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER ON POST-JUDGMENT MOTIONS
On July 13, 2015, petitioner Juan Ramon Meza Segundo filed his
“Motion under Federal Rules of Civil Procedure 59(e) and 60(a) to
Amend and Correct Memorandum Opinion and Order Denying Relief.” (Mot.
to Amend, doc. 55.)

The certificate of conference indicates that

it is opposed. Subsequently, Respondent filed his response in which
he opposed the motion in part.

(Resp. to Mot. Am., doc. 59.)

On July 19, Segundo filed his post-judgment motion for leave
to consider newly discovered evidence under Federal Rules of Civil
Procedure 59 and 60(b)(1). (New Evid. Mot., doc. 56.) No certificate
of conference was included in that motion, but Respondent filed his
response in opposition.

(New Evid. Resp., doc. 60.)

On August 7, Segundo filed his supplemental post-judgment motion
for leave to consider newly discovered evidence under Federal Rules
of Civil Procedure 59 and 60(b)(1). (Supp. Mot., doc. 62.) Again,
no certificate of conference was appended to that motion, but

Respondent filed his response in opposition. (Resp. to Supp. Mot.,
doc. 65.)
I. AMENDING FINDINGS
In his motion to amend, Segundo argues that a factual statement
in the Memorandum Opinion and Order Denying Relief (doc. 48, also
“Memorandum Opinion”) was incorrect (Mot. to Amend, doc. 55, at 3-4)
and that additional findings should be made. (Mot. to Amend at 3-5.)
Respondent concedes that a factual statement was incorrect and should
be corrected (Resp. to Mot. Am., doc. 59 at 3-4), but opposes the
request for additional findings.

(Resp. to Mot. Am. at 4-5.)

A. STANDARD
Rule 59(e) of the Federal Rules of Civil Procedure allows a court
“to rectify its own mistakes in the period immediately following entry
of judgment.” White v. New Hampshire Dept. of Employment Sec., 455
U.S. 445, 450 (1982). It allows reconsideration of a final judgment
where a party shows a need to (1) correct a clear error of law or
prevent manifest injustice, (2) present newly discovered evidence,
or (3) reflect an intervening change in controlling law. See Schiller
v. Physicians Res. Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003);
In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002).
Although district courts have discretion as to whether to reopen a
case under Rule 59(e), that discretion is not unlimited. The Fifth
Circuit has “identified two important judicial imperatives relating
to such a motion: 1) the need to bring litigation to an end; and 2)
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the need to render just decisions on the basis of all the facts.
The task for the district court is to strike the proper balance
between these competing interests.” Templet v. HydroChem Inc., 367
F.3d 473, 479 (5th Cir. 2004) (citations omitted).
Similarly, Rule 52(b) of the Federal Rules of Civil Procedure
provides that a court “may amend its findings—or make additional
findings—and may amend the judgment accordingly.”
52(b).

Fed. R. Civ. P.

The purpose of a Rule 52(b) motion “is to correct manifest

errors of law or fact or, in some limited situations, to present newly
discovered evidence.” Fontenot v. Mesa Petroleum Co., 791 F.2d 1207,
1219 (5th Cir.1986); Austin v. Stephens, No. 4:04-CV-2387, 2013 WL
3456986, at *1 (S.D. Tex. July 8, 2013).
This is not to say, however, that a motion to amend
should be employed to introduce evidence that was available
at trial but was not proffered, to relitigate old issues,
to advance new theories, or to secure a rehearing on the
merits.
Except for motions to amend based on newly
discovered evidence, the trial court is only required to
amend its findings of fact based on evidence contained in
the record. To do otherwise would defeat the compelling
interest in the finality of litigation.
Fontenot, 791 F.2d at 1219-20 (citations omitted).
For motions filed outside of the time allowed for a Rule 59 or
Rule 52 motion, Rule 60(a) of the Federal Rules of Civil Procedure
provides that a court “may correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record.”
B. ANALYSIS

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Segundo cites Rules 59(e) and 60(a) in support of his motion
to amend this Court’s findings and include new findings, but Rule
52(b) would also address amending findings. In his motion to amend,
Segundo identifies one mistake that would appear to warrant an amended
finding: that Dr. Hopewell “administered” certain intelligence tests
that he merely “reviewed”.

(Mot. Amend at 3-4.)

The remainder of

his motion merely seeks more favorable findings and does not warrant
relief.
Segundo’s Motion to Amend (doc. 55) is GRANTED IN PART.

The

language in the first sentence of the second paragraph on page 8 of
the Memorandum Opinion that states, “Dr. Hopewell administered the
Wechsler Adult Intelligence Scale, Version III (“WAIS III”), and the
“RBANS” test ...,” is MODIFIED to state, “Dr. Hopewell reviewed the
Wechsler Adult Intelligence Scale, Version III (“WAIS III”), and the
“RBANS” test ....”

All other relief requested in Segundo’s Motion

to Amend (doc. 55) is DENIED.
II. NEWLY DISCOVERED EVIDENCE
After the time set out in Rule 59 of the Federal Rules of Civil
Procedure had expired, Segundo filed a motion under Rules 59 and
60(b)(1) for consideration of “newly discovered evidence” that had
long been in the attorney’s file but was allegedly overlooked. (New.
Evid. Mot., doc. 56.)

Respondent asserts that the portion of

Segundo’s motion regarding his intellectual-disability (“ID”) claim
constitutes a second or successive petition and the portion of
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Segundo’s motion regarding his ineffective-assistance-of-counsel
(“IAC”) claim is untimely and does not warrant relief.

(Resp. to

New Evid., doc. 60.)
Subsequently,

Segundo

filed

a

supplemental

motion

for

consideration of newly discovered evidence under Rules 59 and
60(b)(1).

(Supp. Mot., doc. 62.)

In opposition, Respondent again

asserts that the allegations regarding the ID claim would constitute
a successive petition and the allegations regarding the IAC claim
remain procedurally barred. (Resp. to Supp. Mot., doc. 65.) He also
asserts that, despite Segundo’s arguments, his three postjudgment
motions are separate and distinct and should not be treated as
amendments or supplements to his motion filed within the time set
out in Rule 59.
A. STANDARD
Whether Rule 59 or 60 of the Federal Rules of Civil Procedure
governs a postjudgment motion depends on the time that the motion
is filed.

If filed within the time set out in Rule 59(b) or (e),

it is controlled by Rule 59.
controlled by Rule 60.

If filed after that time, it is

See Texas A&M Research Found. v. Magna

Transp., Inc., 338 F.3d 394, 400 (5th Cir. 2003); Demahy v. Schwarz
Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (“Because it was filed
within the relevant time period, we consider Demahy’s Rule 60(b)(5)
motion as a motion to amend the judgment under Federal Rule of Civil
Procedure 59(e).”).
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Further, the district court has no discretion to grant an
untimely motion under Rule 59. “The time requirement of Rule 59(b)
is jurisdictional; for the court lacks authority to rule upon a motion
filed beyond the statutory period.” Martin v. Wainwright, 469 F.2d
1072, 1073 (5th Cir. 1972 (citing Albers v. Gant, 435 F.2d 146 (5th
Cir. 1970)).
In this Circuit, however, a district court has the discretion
to consider an amendment to a timely filed motion for new trial that
comes after the period set forth in Rule 59. After noting the split
among the circuits on this issue, the United States Court of Appeals
for the Fifth Circuit observed:
This Circuit has adopted a more liberal rule. Here a trial
court may in the exercise of its sound discretion allow
a tardy amendment stating an additional ground for a new
trial.
Pruett v. Marshall, 283 F.2d 436, 440 (5th
Cir.1960). The trial court is not, however, required to
do so. Factors relevant to the court's decision include
the length of the delay and the reasons given. Id.
Dotson v. Clark Equip. Co., 805 F.2d 1225, 1228 (5th Cir. 1986).
Another factor in exercising such discretion appears to be whether
the allegations presented in the proposed amendment would warrant
a new trial.

Pruett, 283 F.2d at 440; Pate v. Seaboard R.R., 819

F.2d 1074, 1086 (11th Cir. 1987) (holding that “the court was within
its discretion in determining that the question raised in the
amendment was very serious and not duplicitous of the original motion
for a new trial.”).

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Finally, the postconviction motion cannot be used to present
a second or successive petition under 28 U.S.C. § 2244(b), which
provides that a claim presented in a second or successive habeascorpus application under section 2254 must normally be dismissed.
This Circuit has applied the rationale of Gonzalez v. Crosby, 545
U.S. 524, 531 (2005), setting forth the standard for determining when
a motion filed under Rule 60(b) must be considered a second or
successive petition, to motions filed under Rule 59(e) as well. See
Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010). One example
provided by the Supreme Court in Gonzalez that clearly showed the
postjudgment motion to be a successive petition was when the motion
straightforwardly asserted a new “claim” that had been omitted from
the habeas petition owing to “excusable neglect” under Rule 60(b)(1).
Gonzalez, 545 U.S. at 531. Another example was a motion that sought
leave to present “newly discovered evidence” under Rule 60(b)(2) in
support of a claim previously denied.

Id.

In these examples, the

district court was without jurisdiction to entertain the motion
without the authorization from the Court of Appeals required by 28
U.S.C. § 2244(b)(3).
B. ANALYSIS
Segundo’s motions present complex and difficult procedural
issues, but the manner in which they are resolved would make little
difference. The asserted “newly discovered evidence” would not change
the outcome of any claim before this Court.
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Segundo refers to state prison records that note an IQ but do
not provide any details regarding any IQ test that may have been
conducted. The prison IQ scores were, however, explored in the state
habeas proceedings. Segundo’s testifying expert, Stephen A. Thorne,
Ph.D., discussed his prison IQ scores and the affidavit provided by
Arden Dominey, M.A., the psychologist responsible for the oversight
of monitoring mental-health care of individuals entering the prison
system, explaining Segundo’s different IQ test scores and their
significance. (Vol. 2, State Habeas Reporter’s Record “SHRR” at pp.
23-26, citing State’s Exhibit 6 in 6 SHRR.) Segundo also refers to
academic records that suggest his poor academic performance, but has
not shown that his prior experts were not aware of them.

In fact,

both his expert and the State’s expert in the state habeas proceedings
discussed his problems in school and the fact that he had never been
declared eligible for special education but was declared ineligible
for the Mentally Retarded Offender Program in the Texas prison system.
(2 SHRR at 30-31, 50, 53, 64-65, 81, 84, 94; 6 SHRR at State’s Ex.
6.)

Thus, Segundo has not presented any credible IQ or academic

evidence capable of undermining any opinions of the experts that
testified in the state proceedings.
Further, while Segundo belatedly provides some evidence that
one of his prior experts had requested social-history information,
he does not show that any of the new information would have changed
the opinion of such expert or his testimony before the state court.

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Therefore, Segundo’s motions to consider newly discovered
evidence and supplemental motion are DENIED for the reasons set out
below.
1. Jurisdictional Matter
Respondent asserts that the portion of the motion to consider
newly discovered evidence and supplemental motion that argue for a
reconsideration of the merits of the ID claim are second or successive
under 2244(d) and outside of the jurisdiction of this Court unless
and until leave is granted by the Court of Appeals.

Respondent is

correct.
Segundo’s motion requests that this Court consider new evidence
that his own counsel failed to discover earlier that he now argues
would have changed this Court’s original resolution of his ID claim.
In this respect, it is indistinguishable from In re Coleman, 768 F.3d
367 (5th Cir.), cert. denied sub nom. Coleman v. Stephens, 135 S.
Ct. 41 (2014).
Coleman argues that there was a defect in the integrity
of her original habeas petition, namely that “the
additional evidence from the four witnesses recently
discovered and relevant to the ‘kidnapping’ issue was
unavailable to this Court when it decided the claim
previously, and the attached affidavits and the evidence
contained therein are now available.”
Her counsel’s
failure to discover and present this evidence, she argues,
indicated that they were constitutionally ineffective.
This claim, however, is fundamentally substantive—she
argues that the presence of new facts would have changed
this court’s original result. Moreover, Coleman does not
allege that the court or prosecution prevented her from
presenting such evidence, but rather argues that her own
counsel was ineffective in failing to present such
evidence. The Supreme Court has held that such an argument
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sounds in substance, not procedure. Nor is Coleman’s
alleged defect similar in kind to those highlighted by the
Supreme Court as examples of procedural failures, such as
statute-of-limitations or exhaustion rulings. As such,
we AFFIRM the decision of the district court, and treat
Coleman’s petition as a second or subsequent habeas
application.
Id. at 371-72 (footnotes omitted). Since this motion was filed more
that 28 days after the original judgment was entered, it is controlled
by Rule 60(b), rather than Rule 59.

See Texas A&M Research Found.,

338 F.3d at 400; Demahy, 702 F.3d at 182.

Because Segundo has not

obtained prior authorization from the Court of Appeals, this Court
is without jurisdiction to consider this portion of the motion.
Therefore, this portion of the motion is DISMISSED for want of
jurisdiction.

In the alternative, it is DENIED for lack of merit.

2. Separate, Amended or Supplemental Motions
Because Segundo’s motion for consideration of newly discovered
evidence was filed after the time allowed by Rule 59, it is governed
by Rule 60(b) unless considered an amendment to the timely filed
motion to alter or amend judgment.

In making this determination,

the Court considers the length of the delay, the reasons given for
the delay, and whether the allegations of the motion would warrant
relief.
While the length of the delay was not great, the reason provided
is inadequate, and the evidence insufficient to make any difference
to the outcome of these proceedings.

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The motion asserts that the “newly discovered” information had
been in Segundo’s counsel’s own files from very early in their
representation of him. The motion does not say who read the original
paper record, but states that the version of the record that was
scanned and maintained by the Texas Defender Service (TDS) had
problems.
Apparently, people at TDS created multiple versions of the
records, some of which were complete and some incomplete.

Paul

Mansur, the TDS attorney that had been the co-counsel on this case,
did not have access to the complete version of that record and did
not know that the version of the record he reviewed was incomplete.
Burke Butler, the newly appointed co-counsel and TDS attorney that
had previously been working with Mansur on the case, however, appears
to have always had access to the complete and incomplete versions
of the electronic record while she worked at TDS.
In his motion to substitute Butler as co-counsel, Mansur
represented to the Court that she had been working on the precise
issue that involved those records: the intellectual-disability claim
and efforts to get this Court to reconsider its prior denial of
funding to investigate the claim further. (Mot. to Subst. Counsel,
doc. 51, at 3.) That motion involved the same claim asserted in the
motion to consider newly discovered evidence.

(Mot. to Reconsider

Denial of Funding, doc. 45.) Because Butler had been working on the
same issues involving the same evidence that would have directed her

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to the same electronic records in multiple versions that she had
access to review, any failure to notice a disparity in the information
available to all counsel would appear to have been hers.

The fact

that she had not been officially appointed as co-counsel would not
deprive her of the knowledge of the multiple databases or the
responsibility to disclose them to Segundo’s other counsel long before
a judgment was entered in this case.1 Therefore, the reason for the
delay--waiting until she was officially appointed to reveal this
problem to Segundo’s other counsel--would not excuse Butler’s conduct
in not revealing it earlier.2
As stated above, even if the newly discovered evidence is
considered, it would not change the outcome of these proceedings.
Therefore, it would not warrant a new trial or even warrant
considering it as an amendment to the earlier motion filed within
the time set out in Rule 59.

Therefore, the requests to consider

the motions filed outside of the time set out in Rule 59 as amendments
to the motion filed within that time is DENIED, and the motion to
consider newly discovered evidence (doc. 56) and supplemental motion
(doc. 62) are both DENIED under the standards set out in Rule 60(b).
1
Newly appointed co-counsel alleges a potential conflict of interest by
Segundo’s other counsel in complaining of their failure to discover this
information earlier. The record before this Court, however, reveals that she is
the attorney with the largest potential conflict of interest, being the one most
clearly able to discover the problem created by TDS with multiple databases.

2
It is also not clear whether lead counsel Alexander Calhoun reviewed the
complete paper record that was later scanned by TDS, and made a reasonable
decision to not include such the “new evidence” in the petition filed before this
Court, particularly since it is insufficient to warrant relief.

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III. CONCLUSION
The Court grants the motion to amend incorrect language in the
memorandum opinion and order, but denies that portion of the motion
requesting additional findings, and denies the additional and
supplemental motions.
in any way.

This correction does not change the outcome

The judgment previously entered in this case to deny

relief is otherwise correct.
The motion to amend or correct (doc. 55) is GRANTED in part and
DENIED in part.

The language on page 8 of the memorandum opinion

and order denying relief (doc. 48) stating that “Dr. Hopewell
administered the Wechsler Adult Intelligence Scale, Version III (‘WAIS
III’), and the ‘RBANS’ test, and testified that Segundo’s intelligence
quotient (‘IQ’) result was in the borderline range for intellectual
disability but, significantly, that Segundo was not considered
intellectually disabled,” is AMENDED. It will now read as follows:
“Dr. Hopewell reviewed the Wechsler Adult Intelligence Scale, Version
III (‘WAIS III’), and the ‘RBANS’ test administered by Dr. Goodness.
Dr. Hopewell testified that Segundo’s intelligence quotient (‘IQ’)
result was in the borderline range for intellectual disability but,
significantly, that Segundo was not considered intellectually
disabled.”

The remainder of Segundo’s motion is DENIED.

The motion for leave to consider newly discovered evidence under
Federal Rules of Civil Procedure 59 and 60(b)(1) (doc. 56) is DENIED.
The supplemental post-judgment motion for leave to consider newly
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discovered evidence under Federal Rules of Civil Procedure 59 and
60(b)(1) (doc. 62) is DENIED.
Because the resolution of these motions does not change the
outcome of these proceedings, this Court’s judgment denying relief
remains intact.
SIGNED December 7, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/rs

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