Juniper v. Kelly

Filing 158

OPINION - Signed by District Judge John A. Gibney, Jr on 02/02/2016. (tjoh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ANTHONY BERNARD JUNIPER,
Petitioner,
Civil Action No. 3:11 -cv-00746

V.

DAVID W. ZOOK,
Warden, Sussex I Slate Prison

Respondent.

OPINION

The petitioner, Anthony Juniper ("Juniper"), moves under Rule 59(e) to alter or amend
this Court's August 3, 2015 order dismissing Juniper's Petition for Writ of Habeas Corpus. This
Court held that Juniper could not make out a claim for ineffective assistance of counsel. Juniper

asserts that Rule 59(e) relief is appropriate in light of two cases pending before the Fourth
Circuit, because they may create changes to existing Virginia law, which would aid in his
ineffective assistance of counsel claim. He asks this Court hold his case in abeyance until the

resolution of those cases, or to reconsider its denial of a certificate of appealability to the Fourth
Circuit. The Court DENIES juniper's Rule 59(e) motion in its entirety because it fails to assert
that new evidence exists, there is a change in controlling law, or granting the motion is necessary

to prevent manifest injustice. The Court also DENIES Juniper's request to reconsider its denial
of a certificate of appealability. Juniper may request a certificate of appealability from the
United States Court of Appeals for the Fourth Circuit.

I. FACTS AND PROCEDURAL HISTORY

This Court summarized the facts of Juniper's state murder case in its August 3, 2015
Memorandum Opinion. In short, a jury convicted Juniper on four counts of capital murder and
other felony charges related to the quadruple homicide of Ms. Keshia Stephens, her younger
brother Reuben Harrison, III, and her two daughters Nykia and Shearyia Stephens. A Norfolk

jury sentenced him to death for each of the convictions. After numerous unsuccessful appeals,

Jumper filed for federal habeas relief under 28 U.S.C. § 2254. This Court dismissed his petition
in its March 29, 2013 Order, and Juniper appealed to the Fourth Circuit.

The Fourth Circuit vacated part of this Court's decision and remanded the case. This

Court appointed independent counsel to investigate Juniper's Martinez claims, and granted leave
for him to file an amended habeas petition. Juniper's amended habeas petition asserted three
claims of ineffective assistance of counsel. The relevant claim to this motion alleged that his

state trial attorney's failure to object to the state court's exclusion of expert testimony regarding

Juniper's future dangerousness if imprisoned lor life without parole constituted ineffective
assistance of counsel. This Court granted the respondent's motion to dismiss. Juniper filed a
timely Rule 59(e) motion.

Juniper bases his Rule 59(e) motion on two cases that were pending before the Fourth
Circuit at the time of his motion, Porter v. Zook, 14-5 (4th Cir. Oct. 20, 2015), and Morva v.

Zook, 15-1 (4th Cir. appeal docketed May 14, 2015). The petitioners in both cases argue that a

capital murder defendant has a right to present expert mitigation testimony to show that he will
not pose a future danger if sentenced to life in prison without the possibility ofparole. Juniper

' Petitioner concedes that the petitioner in Porter did not assert that the expert testimony would
"focus on the particular facts of[his] history and background, and the circumstances ofhis
offense." (Dk. No. 156, 3 (quoting Porter v. Commonwealth, 661 S.E.2d 415, 440 (Va. 2008).)

essentially argues that the Fourth Circuit may overrule Virginia's precedent and find admissible

expert mitigation testimony regarding the defendant's future dangerousness in prison.
11. LEGAL STANDARD

Under Rule 59(e), an aggrieved party may move to alter or amend a judgment within 28
days of its entry. Fed. R. Civ. P. 59(c); Hiitchinson v. Stafon, 994 F.2d 1076, 1081 (4th Cir.

1993) (citing previous 10-day filing deadline that was changed in 2009 amendments). The
Fourth Circuit holds that such relief is appropriate only to "(1) to accommodate an intervening

change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct

a clear error of law or prevent manifest injustice." Zinkand v. Brown, 478 F.3d 634, 637 (4th

Cir. 2007) (quoting Ingle v. Yelfon, 439 F.3d 191, 197 (4th Cir. 2006)). Rule 59(e) is not a

vehicle for a petitioner to merely relitigate the previously decided issues. Belong v. Taylor, 790
F. Supp. 594, 618 (E.D. Va. 1991) (quoting Durkin v. Taylor, 444 F. Supp. 879, 888 (E.D. Va.

1977)). Finally, amending or altering a judgement under Rule 59(e) is an extraordinary remedy
that should be utilized sparingly. Pacific Ins. Co. v. Am. Nat7. Fire Ins. Co., 148 F.3d 396, 403
(4th Cir. 1998).
in. DISCUSSION

Juniper argues that his counsel failed to mount a constitutional challenge to the trial
court's exclusion of expert mitigation testimony about his future dangerousness if imprisoned for
life without parole. This argument does not meet any of the three possible rationales under
Zinkand for a proper Rule 59(e) motion. Juniper does not present any new evidence in his case.
He filed this Rule 59(e) motion on the basis that the Fourth Circuit may overrule Virginia

Supreme Court precedent in either the Porter or the Morva cases. While the Fourth Circuit has
not ruled in Morva, a three-judge panel decided Porter in October 2015. The Court dismissed

the prisoner's petition and remanded the case to the district court without addressing the points
Juniper addresses in his Rule 59(e) motion. Porler v. Zook, 803 F.3d 694 (4th Cir. 2015).

The Virginia Supreme Court affirmed the exclusion of mitigation evidence of future

dangerousness in prison and relied on well-established Virginia Supreme Court precedent to do
so. See Juniper v. Commomveaiih, 271 Va. 362, 424-28 (Va. 2006) (citing cases). No Fourth
Circuit precedent recognizes a speculative change in law as a proper basis for altering or

amending a judgment under Rule 59(e). Further, one of the cases Juniper speculated might
change the law was dismissed without doing so. Finally, Juniper provides no basis for this Court
to conclude that granting the motion will prevent manifest injustice.

Juniper's motion appears to be closer to a disagreement with this Court's decision and

controlling Virginia precedent, than a proper procedural criticism of an erroneous decision. See
Alkins V. Marathon LeToiirneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990) (detailing the

difference between injustice due to a clear error of law, and a litigant's mere disagreement with
the law). A mere disagreement with controlling law or the Court's decision does not constitute a
proper basis for altering or amending a judgment under Rule 59(e).
IV. CONCLUSION

The Court did not err in dismissing Juniper's amended petition. The motion presents no

new evidence, postulates no change in controlling law, and provides no basis to conclude that
granting the motion will prevent manifest injustice.

It merely states a disagreement with

controlling Virginia law, and a speculative hope that the Fourth Circuit will alter that law.
Accordingly, this Court DENIES Juniper's motion. This Court also DENIES his request for

reconsideration of the Court's denial of his certificate of appealability. Juniper may request a
•

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certificate of appealability from the United States Court of Appeals for the Fourth Circuit.
The Court will enter the appropriate order.

Date: February"^ 2016
Richmond, Virginia

JohnA. Gibney,^. /
United States District^Judge

This request should proceed as an appeal under 28 U.S.C. § 2253(a).