Wessinger v. Cain

LIUNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TODD KELVIN WESSINGER

CIVIL ACTION

VERSUS

NO. 04-637-JWD-EWD

DARREL VANNOY

RULING AND ORDER

This matter comes before the Court on the Petitioner’s Motion for Summary Judgment, or,

in the Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for

Relief from Judgment (Doc. 234) filed by Petitioner Todd Kelvin Wessinger (“Petitioner” or

“Wessinger”). Respondent State of Louisiana (“Respondent”) opposes the motion (Doc. 244), and

Petitioner has filed a reply (Doc. 245). Oral argument is not necessary. The Court has carefully

considered the law, the facts in the record, and the arguments and submissions of the parties and

is prepared to rule. For the following reasons, Petitioner’s motion is denied.

I. Relevant Factual and Procedural Background

The following facts are taken entirely from Petitioner’s Statement of Uncontested Material

Facts in Support of Rule 56 Motion for Summary Judgment or, in the Alternative, for Relief from

Judgment Under Rule 60(b)(6) (Doc. 234-2) (“SUMF”). Respondent failed to controvert these

facts, as required by the local rules.1 Accordingly, all of the facts set forth in the SUMF are

“deemed admitted, for purposes of the motion[.]” M.D. La. LR 56(b).

1 Specifically, Middle District of Louisiana Local Civil Rule 56(b) provides:

Opposition to Summary Judgment. Each copy of the papers opposing a motion for summary

judgment shall include a separate, short and concise statement of the material facts as to which the

opponent contends there exists a genuine issue to be tried. All material facts set forth in the statement

required to be served by the moving party will be deemed admitted, for purposes of the motion,

unless controverted as required by this Rule.

(emphasis added).

A. State Capital Trial Proceedings

Petitioner was charged in state court in Baton Rouge, Louisiana with two counts of first

degree murder for the November 19, 1995 shooting deaths of Stephanie Guzzardo and David

Breakwell. (SUMF ¶ 1.) At the time of his first-degree murder trial on these charges, which began

on June 16, 1997, Petitioner was represented by Baton Rouge attorneys Greg Rome and Joseph

William “Billy” Hecker, who is now deceased, both of whom were appointed as counsel for

Petitioner on January 7, 1997, less than six months prior to trial. (SUMF ¶ 1.) Jury selection began

on June 16, 1997, and eight days later, on June 24, 1997, Petitioner was convicted on both counts.

(SUMF ¶ 1.)

The next day, June 25th, the same jury returned death sentences on both counts following

a defense penalty phase presentation that lasted less than four hours, including cross-examination

by the prosecution. (SUMF ¶ 2.) Hecker, who was solely responsible for the penalty phase of the

trial, did not conduct a mitigation investigation, nor did he employ someone to do so. (SUMF ¶ 2.)

The Louisiana Supreme Court affirmed the convictions and sentences. (SUMF ¶ 2 (citing State v.

Wessinger, 98-1234 (La. 5/28/99); 736 So.2d 162).

B. State Post-Conviction Proceedings

On January 3, 2001, the Louisiana Supreme Court formally appointed Soren Gisleson, a

first-year associate at the New Orleans, Louisiana law firm of Herman, Herman, Katz & Cotlar,

LLP, to represent Petitioner in state post-conviction proceedings following the firm’s agreement

to accept pro bono representation of a death row inmate. (SUMF ¶ 3.)

Prior to formal appointment, on December 27, 2000, Gisleson filed a three-page shell

petition in an effort to stop the one-year clock from running. (SUMF ¶ 4.) “At a status conference

in February of 2001, the state post-conviction trial court gave Gisleson 60 days, until April 10,

2001, to file a more complete, amended petition.” (SUMF ¶ 4.)

On March 12, 2001, Gisleson filed a motion with the state post-conviction trial court

requesting funding for investigative assistance to establish the factual basis for claims of

ineffective assistance of counsel at the guilt and penalty phases of Wessinger’s trial. (SUMF ¶ 5.)

The motion included general allegations that trial counsel’s preparation of the penalty phase was

“woefully inadequate” and “there is every reason to believe that such investigation would produce

information that should have bene [sic] presented to Mr. Wessinger’s jury.” (SUMF ¶ 5.)

On April 5, 2001, Gisleson filed a motion in the state post-conviction trial court to continue

the April 10, 2001, filing deadline for the state post-conviction petition. (SUMF ¶ 6.)

On April 10, 2001, the state trial court extended the deadline an additional 60 days, until

June 11, 2001, to file an amended state post-conviction petition. (SUMF ¶ 7.) Also, on April 10,

2001, the state trial court ordered Gisleson to petition the Louisiana Indigent Defender and

Assistance Board (LIDAB), which the court found to be responsible for funding the post-

conviction investigation, to determine if the board would actually fund the investigation and report

back to the court. (SUMF ¶ 7.) Further, the state trial court set an April 24, 2001 hearing date if

there were “any problems with getting funding,” at which time the court told Gisleson, “if you

have any evidence to present, you better have it that day because it won’t be continued to another

day. That issue will be resolved that day.” (SUMF ¶ 7.)

On April 16, 2001, Gisleson notified the state trial court that the Louisiana Indigent

Defense Assistance Board (LIDAB), the Capital Post-Conviction Project of Louisiana (CPCPL)

and the Baton Rouge Indigent Defender Board, all of whom he reached out to for funding and

assistance, took the position that they were not responsible for providing funding for investigation

in state post-conviction for Petitioner. (SUMF ¶ 8.) The Director of the local Baton Rouge Indigent

Defense Board stated that if the state trial court ordered him to pay for investigative and expert

expenses for Wessinger, as the state trial court did in State ex rel. Jimmy Ray Williams v. Burl

Cain, No. 7-94-871, 19th Judicial District Court, “nothing would be provided, as his office

currently has no funds available.” (SUMF ¶ 8.)

By letter to the state trial court dated April 11, 2001, the director of LIDAB Edward R.

Greenlee wrote that “[t]he only funds available in the LIDAB budget for Capital Post-Conviction

cases have been fully dedicated to the Capital Post Conviction Project of Louisiana (CPCPL).

Unfortunately, the available funds are insufficient to enable CPCPL to assist financially in any

cases where the client is already represented. The funding of the backlog of cases is the

responsibility of the local Indigent Defender Boards.” (SUMF ¶ 9.) Mr. Greenlee also referenced

his testimony to this effect in the case of Jimmy Ray Williams. (SUMF ¶ 9.)

On April 23, 2001, Gisleson filed a motion to continue the April 24th hearing for three

weeks because Petitioner “has been patently unable to secure the testimony of necessary experts

or provide experts with the time to review ‘bare-boned’ facts and evidence of the case” to

determine what expert services are needed, the extent of the services needed, and the cost. (SUMF

¶ 10.) Gisleson further stated that “Petitioner has been unable to arrange for a single expert to

appear or for any affidavits,” and, at the time the April 24, 2001, hearing date was set, “undersigned

counsel did not appreciate that this much time and difficulty would be encountered.” (SUMF ¶ 10.)

The state trial court went forward with the April 24, 2001 hearing. (SUMF ¶ 11.)

The state court denied the request for funding for experts. (SUMF ¶ 11.)

On June 5, 2001, a week before the June 11th state post-conviction petition filing deadline,

Gisleson filed a motion to withdraw with the Louisiana Supreme Court, seeking to be relieved of

the representation based on his admitted inability “to provide competent representation in post-

conviction” proceedings in state court “under the time and resource constraints” with which he

was presented. (SUMF ¶ 12.) This motion was denied by the Louisiana Supreme Court, with one

justice concurring and suggesting that counsel for Petitioner “may seek assistance of counsel of

LADAB if he deems that advisable.” (SUMF ¶ 12.)

Gisleson filed an amended state post-conviction petition by the June 11, 2001, deadline set

by the state trial court. (SUMF ¶ 13.)

Following the State’s filing of its response in February of 2003, Gisleson filed a second

amended petition in August of 2003. (SUMF ¶ 14.)

At a September 3, 2003 status conference, the state trial court denied relief, dismissing all

claims in the first amended post-conviction petition as procedurally barred due to lack of factual

support, and denying relief on the merits on the ineffective assistance of trial counsel claims in the

second amended post-conviction petition. (SUMF ¶ 15.) The Louisiana Supreme Court affirmed.

(SUMF ¶ 15 (citing State ex rel. Wessinger v. Cain, 2003-3097 (La. 9/3/04); 882 So. 2d 605).)

C. Federal Habeas Proceedings

1. Pre-Decision Happenings

On September 4, 2004, a day after the adverse state post-conviction ruling by the Louisiana

Supreme Court, Gisleson filed a habeas petition in federal district court raising the same claims

that he raised in the state courts. (SUMF ¶ 16.) This habeas petition included the penalty phase

ineffective assistance of trial counsel claim that was presented to the state postconviction courts

and that was based on trial counsel’s penalty phase failures as reflected in the transcript of the

penalty phase of the trial. (SUMF ¶ 16.)

After additional counsel was appointed by Judge Brady, Petitioner, through new counsel,

filed an Amended Petition for Writ of Habeas Corpus. (SUMF ¶ 17.) The amended petition

included a claim, Claim XI-C, that trial counsel was ineffective at the penalty phase of Wessinger’s

first degree murder trial. (SUMF ¶ 17.) The claim alleged that trial counsel failed to secure the

services of a mitigation specialist and did not conduct a social history investigation of Petitioner,

and instead called witnesses counsel met for the first time in the hallway outside the courtroom

and presented damaging testimony through counsel’s own unprepared expert witnesses. (SUMF ¶

17.)

Claim XI-C also alleged what trial counsel would have discovered had he conducted a

proper mitigation investigation, including powerful mitigation evidence regarding Petitioner’s

family history of mental illness, alcohol abuse and violence and Petitioner’s own mental illness,

none of which ever had been presented to the state courts. (SUMF ¶ 18 (citing Doc. 120 at 232–

56.).) This mitigation included that Petitioner’s maternal and paternal families have a significant

history of seizure disorders, mental retardation, cerebral palsy and other neurologic and cognitive

impairments and alcohol abuse; that Petitioner struggled with neurologic and psychiatric

symptoms that adversely affected his ability to function over the course of his life; that Petitioner

experienced repeated and severe seizures as a child and was medicated with Phenobarbital; that

Petitioner, who faced great difficulty in school and fell behind his peers academically, suffered

ridicule, humiliation and physical abuse by his father, who singled him out for cruel treatment;

that neuropsychological testing of Petitioner shows signs of significant psychomotor impairment,

right hemisphere abnormality, deficits associated with fetal alcohol spectrum disorder and other

signs of cerebral dysfunction and moderate brain impairment; that Petitioner was raised by parents

whose world view, handed down to their children, was shaped by the circumstance that they grew

up on Louisiana plantations that remained little changed since slavery, and who constantly

struggled to make ends meet in raising their children in poverty in segregated Baton Rouge; that

Petitioner was raised by a father, an alcoholic, who was a violent man who hit, pushed, and

threatened his wife when he was drunk. (SUMF ¶ 18 (citing Doc. 120 at 232–56.).)

In its Memorandum in Opposition to Petition for Writ of Habeas Corpus, respondent

alleged that in this penalty phase ineffective assistance of counsel claim “[P]etitioner goes way

beyond what he presented to the state courts for consideration of this claim below. As such, he

should not be permitted to alter the habeas record by including items and discussions that he did

not present to the state courts.” (SUMF ¶ 19 (citing Doc. 129 at 151).)

2. Judge Brady’s Decisions

The district court initially denied habeas relief on all claims. (SUMF ¶ 20 (citing Doc. 135

at 1.) However, following the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1, 132 Sc.

1309 (2012), Petitioner filed a timely motion pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure to alter or amend the judgment denying the petition with respect to Claim XI-C. (SUMF

¶ 20.) While acknowledging that the penalty phase ineffectiveness Claim XI-C was not fairly

presented to the Louisiana state courts and, thus, was procedurally defaulted, Petitioner argued that

this was no barrier to review by the federal courts because state post-conviction counsel Gisleson

had failed to provide effective representation in state post-conviction proceedings, thereby

excusing any procedural default under Martinez. (SUMF ¶ 20.) Petitioner also argued that the

procedural default should be excused because the state refused to provide the requested necessary

funding for mitigation and other expert assistance in state post-conviction proceedings, despite

post-conviction counsel’s request for funding from multiple sources, including the state

postconviction court, such that the state corrective process was ineffective to protect petitioner’s

rights, citing to 28 U.S.C. § 2254(b)(1)(B)(ii). (SUMF ¶ 20 (citing Doc. 141 at 22-24).)

The district court granted the Rule 59(e) motion, concluding that the evidence alleged in

support of the penalty phase ineffectiveness claim was materially and significantly different and

stronger than what was presented to the state court. (SUMF ¶ 21 (citing Doc. 156 at 3).) As a

result, Judge Brady concluded that Claim XI-C had not been fairly presented to the state courts

during state post-conviction proceedings and was therefore procedurally barred. (SUMF ¶ 21

(citing Doc. 156 at 3-4).) Judge Brady also concluded that petitioner’s procedural default would

not bar merits review if petitioner could show cause and prejudice as contemplated in Martinez v.

Ryan, 132 S. Ct. 1309 (2012). (SUMF ¶ 21 (citing Doc. 156 at 4-6).) In reaching this conclusion,

Judge Brady stated the following:

As for how he will prove cause, Wessinger claims his initial-review counsel, Mr.

Gisleson, was ineffective during this proceeding because he failed to properly

present the ineffective assistance at trial claim in the state court. Gisleson agrees

that his performance was deficient, but only because he repeatedly was denied

funds and time to properly investigate these claims. There is case law supporting

this ineffectiveness through denial of funds theory. See Gary v. Hall, 558 F.3d

1229, 1251-1253 (11th Cir. 2009); Blake v. Kemp, 758 F.2d 523 (11th Cir. 1985).

The Court finds there are questions of law and fact as to whether this theory applies

in this case.

(Doc. 156 at 5.) Judge Brady ordered that the Court would handle both inquiries – initial-review

counsel’s ineffectiveness and trial counsel’s penalty phase ineffectiveness – at one hearing. (SUMF

¶ 21 (citing Doc. 156 at 6).)

A federal evidentiary hearing was held before Judge Brady on January 12-13, 2015; and

March 18-19, and 23, 2015. (SUMF ¶ 22.) Petitioner presented the testimony, along with

supporting documentation, of pro bono state post-conviction counsel Soren Gisleson; Louisiana

state post-conviction expert Gary Clements, Director of CPCPL; Wessinger family members and

friends Joseph Kelly, Troy Wessinger, Leroy Helire, Jr., John Williams, Demetric Alexander, and

Sharon Alexander; neuropsychatrist Dr. George Woods; mitigation expert Russell Stetler; and

capital defense expert Baton Rouge attorney Michele Fournet. (SUMF ¶ 22.) Respondent did not

present any witnesses. (SUMF ¶ 22.)

On July 27, 2015, Judge Brady issued an order granting Petitioner’s claim for habeas relief

based on Claim XI-C (ineffective assistance of trial counsel at the penalty phase in violation of the

Sixth Amendment). (Doc. 216 at 15.) Judge Brady first found:

Both experts [who testified at the hearing], Mr. Stetler and Mr. Clements,

emphasized the importance of conducting a mitigation investigation, either with the

aid of a mitigation specialist or by counsel conducting an investigation beyond the

trial court record. It is undisputed that Mr. Gisleson conducted no investigation into

mitigation evidence and did not hire a mitigation specialist during his time as

counsel for Petitioner’s post-conviction proceedings. Mr. Gisleson may have

preserved the claim of ineffective assistance of trial counsel at the penalty phase

simply by asserting it in his various amended petitions, but his failure to conduct

mitigation investigation prevented him from providing any support for these

claims. This lack of a mitigation investigation to even determine the merit of

Petitioner’s claim of ineffective assistance of trial counsel at the penalty phase is

below the standard for capital post-conviction proceedings. Under the guidance of

the Fifth Circuit in Canales v. Stephens, 765 F.3d 551, 569 (5th Cir. 2014), this

Court finds that Petitioner’s state initial-review counsel’s performance fell below

an “objective standard of reasonableness” by failing to conduct any mitigation

investigation, particularly when the underlying claim is one of ineffective

assistance of trial counsel at the penalty phase.

(Doc. 216 at 7.) Turning to the issue of whether “the underlying claim [was] a ‘substantial claim

of ineffective assistance at trial[,]’ Martinez, 132 S. Ct. at 1320,” (Doc. 216 at 7), Judge Brady

concluded, “Based on what Mr. Hecker’s acknowledged shortcomings in preparing for the penalty

phase of Petitioner’s trial, this Court finds that the underlying ineffective assistance of counsel at

the penalty phase claim has merit and satisfies the ‘substantial’ element of Martinez.” (Doc. 216

at 9.) Judge Brady then concluded:

This Court has determined that IRC was ineffective in pursuing a substantial claim.

Therefore, Martinez provides the equitable remedy of having the “cause” element

under Coleman satisfied. The Court next asks whether Petitioner can demonstrate

“actual prejudice” as a result of IRC’s failure to exhaust the substantial underlying

claim. Coleman [v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2565 (1991)]. With

regard to the initial review proceeding, it is clear that Mr. Gisleson’s ineffectiveness

in failing to conduct any mitigation investigation caused actual prejudice to

Petitioner’s habeas claim of ineffective assistance of trial counsel at the penalty

phase.

(Doc. 216 at 9.)

Judge Brady next explained that “[t]he equitable holding of Martinez does not decide

Petitioner’s underlying claim for habeas relief. Instead, in the interest of equity, it allows this

federal habeas court to consider a federal habeas claim that would have otherwise been

procedurally defaulted.” (Doc. 216 at 9.) Judge Brady next analyzed Mr. Heckler’s performance

and concluded:

Mr. Hecker’s did not conduct a mitigation investigation. He did not provide

anything more than a large number of unprepared witnesses at the penalty phase of

trial. None of this was done as part of any strategy according to Mr. Hecker. Mr.

Hecker’s representation of Petitioner at the penalty phase was deficient and fell

below the objectively reasonable norms of capital counsel at a penalty phase.

(Doc. 216 at 12.)

Judge Brady then addressed whether “Mr. Hecker’s deficient performance at the penalty

phase of trial prejudiced Petitioner such that ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Doc.

216 at 12 (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).) Judge Brady reviewed

all of the witnesses presented at the hearing, almost all of whom had not been “previously

contacted or interviewed regarding Petitioner for purposes of mitigation.” (Doc. 216 at 14.) Judge

Brady concluded:

The question remains, had these witnesses been contacted and had a mitigation

investigation been done to reveal these lay and expert opinions, is there a reasonable

probability that the result of the sentencing proceeding would have been different?

The Court does not consider the question before it lightly. After considering the

mitigation evidence presented at the evidentiary hearing before us, which was not

presented to the sentencing jury, this Court finds there is a reasonable probability

that the evidence of Petitioner’s brain damage and other impairments, as well as his

personal and family history would have swayed at least one juror to choose a life

sentence.

(Doc. 216 at 14–15.) Judge Brady thus granted “Petitioner’s claim for habeas relief based on

ineffective assistance of trial counsel at the penalty phase in violation of the Sixth Amendment.”

(Doc. 216 at 14.)

Critically, Judge Brady issued the following Judgment:

For reasons assigned in the record,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petitioner for

writ of habeas corpus is hereby GRANTED as to Claim XI-C (Penalty Phase

Ineffective Assistance of Counsel) of the Amended Petition for Writ of Habeas

Corpus (doc. 120), the death sentences are vacated and this matter is remanded to

the 19th Judicial District Court for a new penalty phase trial not inconsistent with

this Court’s ruling. All other claims are denied.

(Doc. 217 at 1 (emphasis added).)

3. The Fifth Circuit’s Decision

The Fifth Circuit reversed. (Doc. 230 at 3.) The appellate court provided an extensive

recitation of the facts; relevant here, the circuit court described Soren Gisleon’s post-conviction

work in-part as follows:

Gisleson moved for “funding for any and all types of investigation.” While the

motion for funds was pending, he asked the Louisiana Indigent Defense Assistance

Board (“LIDAB”), the Louisiana Crisis Assistance Center (“LCAC”), the East

Baton Rouge Indigent Defense Board, and the Capital Post-Conviction Project of

Louisiana (“CPCPL”) for funding or assistance, but the organizations all denied his

requests. CPCPL referred him to mitigation specialist Deanne Sandel. Sandel

provided Gisleson with an affidavit regarding the time, ethical obligations,

investigation, and assistance needed to represent Wessinger in the state post-

conviction proceedings.

The state post-conviction court denied his motion for funds. Gisleson moved to

continue the deadline to file the amended petition. Although the state post-

conviction court initially denied the motion, it eventually gave him a brief

continuance.

(Doc. 230 at 4–5.)

Turning to the analysis, the Fifth Circuit stated, “The State raises several arguments on

appeal. Because we conclude that the district court erroneously determined that Gisleson’s initial-

review representation of Wessinger was deficient, we address only that argument.” (Doc. 230 at

7.) The appellate court explained:

The district court found that Gisleson’s “performance fell below an ‘objective

standard of reasonableness’ by failing to conduct any mitigation investigation,

particularly when the underlying claim is one of ineffective assistance of trial

counsel at the penalty phase.” The district court determined that Gisleson was

deficient because he did not “hire a mitigation specialist to do a social history or

mitigation investigation,” “conduct [his] own mitigation investigation,” or “consult

any mental health experts or any other experts.” The district court relied on the

testimony of two experts, who testified that Gisleson “did not perform the thorough

mitigation investigation required under professional norms” and that a death

penalty team should “include[] two attorneys, . . . a mitigation specialist, and a

paralegal.”

We hold that the district court erred. “[C]onsidering all the circumstances” and

“evaluat[ing] the conduct from [Gisleson’s] perspective at the time,” as we must,

we conclude that Gisleson’s performance in raising and developing Wessinger’s

claim for ineffective assistance of trial counsel at the penalty phase was not

deficient. Strickland, 466 U.S. at 688–89.

(Doc. 230 at 8–9.) The Fifth Circuit concluded:

The district court’s decision instead focused on Gisleson’s “failure to conduct

mitigation investigation [which] prevented him from providing any support” for

Wessinger’s claim for ineffective assistance of counsel at the penalty phase. We

disagree. The state post-conviction court denied Gisleson’s motion for funds “for

any and all types of investigation.” Gisleson also repeatedly reached out to various

organizations for funding or assistance, and he was repeatedly denied. Gisleson did

not hire a mitigation specialist or consult experts because the state post-conviction

court did not grant his motion for funds, not because of any deficiency on

Gisleson’s part. He was thorough in his attempt to secure funds or other assistance,

and ultimately he managed to secure $5,000 from his firm, which he paid to Recer

for her help investigating and filing the second amended petition.

Wessinger previously acknowledged to the district court that he did not develop

evidentiary support for his claim during state post-conviction proceedings because

of decisions by the state post-conviction court, not because Gisleson was deficient.

. . .

Even after the evidentiary hearing, Wessinger argued that Gisleson did not develop

the claim in state court “because of lack of money, lack of expertise, lack of help,

lack of experience and lack of time.” Wessinger has not demonstrated that a more

experienced attorney would have obtained funding, assistance, or additional time

from the state post-conviction court. That Wessinger did not present evidentiary

support of his claim to the state postconviction court is not attributable to Gisleson’s

inexperience or any particular error, but rather to the state post-conviction court’s

decisions to deny a hearing, discovery, and funds—decisions which are entitled to

deference and which Wessinger does not challenge before this court.

Gisleson’s performance in raising and developing Wessinger’s claim for ineffective

assistance of trial counsel at the penalty phase was not deficient. Furthermore,

Wessinger failed to satisfy the prejudice inquiry, as he cannot show Gisleson’s

particular unreasonable errors, rather than decisions by the state post-conviction

court, “actually had an adverse effect on the defense.” Strickland, 466 U.S. at 693.

The district court therefore erred in concluding that Wessinger’s initial-review

counsel was ineffective.

(Doc. 230 at 9–11.)

II. Summary Judgment Standard

“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to

summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v.

Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (citing Rule 11 of the Rules Governing § 2254 Cases;

Fed. R. Civ. P. 81(a)(2)). Under Rule 56, “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). If the mover bears his burden of showing that there is

no genuine issue of fact, “its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with

‘specific facts showing that there is a genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348 (1986) (internal citations omitted).

The non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions,

or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(citations and internal quotations omitted). “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”

Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

“[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or

as a defendant he is asserting an affirmative defense, he must establish beyond peradventure [(that

is, beyond doubt)] all of the essential elements of the claim or defense to warrant judgment in his

favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); peradventure, MERRIAM-

WEBSTER’S DICTIONARY (2019), available at https://www.merriam-

webster.com/dictionary/peradventure. Phrased another way, “[w]here the summary judgment

movant bears the burden of proof at trial, the summary judgment evidence must affirmatively

establish the movant's entitlement to prevail as a matter of law.” Universal Sav. Ass'n v.

McConnell, 14 F.3d 52 (5th Cir. 1993) (unreported).

III. Discussion

A. Introduction

Preliminarily, the Court finds that an overview of the exhaustion issues underlying this

motion will be helpful. As Judge Brady found in his Ruling and Order on Petitioner’s Rule 59(e)

motion:

When a habeas petitioner presents “material additional evidentiary support” to the

federal court that was not presented to the state court, he has not exhausted his state

remedies. Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996). When a claim is

“significantly different and stronger” than presented to the state court, it is deemed

not exhausted. Brown v. Estelle, 701 F.2d 494 (5th Cir. 1983); see also Kunkle v.

Dretke, 352 F.3d 980 (5th Cir. 2003) (addition of psychological report and mother’s

affidavit detailing family history of mental illness along with concrete instances of

abuse of petition presents “significant evidentiary support” such that claim was not

exhausted). . . .

As claim XI-C is procedurally barred, Wessinger is not allowed to bring it unless

he can show cause and prejudice for his failure to exhaust it at the state court level.

To show cause, Wessinger points to a recent Supreme Court case, Martinez v. Ryan,

released on March 20, 2012. 132 S. Ct. 1309 (2012). In Martinez, the Supreme

Court held:

Where, under state law, claims of ineffective assistance of trial

counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.

Id. at 1320. In so holding, the Supreme Court expressly provided a narrow

exception to the general rule expressed in Coleman v. Thompson, 501 U.S. 722,

754-55 (1991) that the negligence of an attorney in a post-conviction proceeding

cannot serve as cause for his failure to exhaust.

(Doc. 156 at 3–4.) Judge Brady similarly said in his order granting the petition for writ of habeas

corpus as to Claim XI-C (Penalty Phase Ineffective assistance of Counsel):

This Court’s previous ruling determined Petitioner’s remaining habeas claim is

procedurally defaulted (doc. 156, at 4). The Court reached this determination based

on the Coleman v. Thompson rule: “[i]n all cases in which a state prisoner has

defaulted his federal claims in state court pursuant to an independent and adequate

state procedural rule, federal habeas review of the claims is barred.” 501 U.S. 722,

750, 111 S. Ct. 2546, 2565 (1991). In Coleman, the Court went on to limit the rule

barring federal habeas review of such defaulted claims when the prisoner can

demonstrate (1) cause for the default and (2) actual prejudice as a result of the

failure to exhaust the claims in state court. Id.

Prior to the Supreme Court’s ruling in Martinez v. Ryan, 132 S. Ct. 1309 (2012),

the negligence of an attorney in post-conviction proceedings did not suffice as

“cause” under Coleman. However, Martinez served as a significant exception when

it held the following:

Where, under state law, claims of ineffective assistance of trial

counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.

Id. at 1320. This Court has already noted the jurisprudential rule in Louisiana that

ineffective assistance claims are generally best suited for post-conviction

proceedings (doc. 156, at 4, citing State v. Hamilton, 699 So.2d 29, 31 (La. 1997)).

Martinez sets forth two more conditions that must be satisfied in order for the

procedurally defaulted claim to be heard by this federal habeas court: (1) IRC was

ineffective in the initial-review proceeding and (2) the underlying habeas claim of

IAC at penalty phase must be a substantial claim.

(Doc. 216 at 1–2.)

With those standards having been laid out, the Court turns to the instant motion. Petitioner

moves for three alternative grounds for relief. In the primary one, Petitioner seeks summary

judgment on the following grounds:

While, as a result of the Fifth Circuit’s ruling, cause and prejudice for excusing the

procedural default of Wessinger’s meritorious ineffectiveness claim can no longer

be based on state post-conviction counsel’s ineffectiveness, it can and should be

based on the repeated failure of the state post-conviction process and policies to

protect Wessinger’s rights and provide him due process and equal protection as a

result of the denial of state post-conviction counsel’s repeated efforts, directed to

multiple state and state-funded entities and the state post-conviction court, to obtain

the necessary funds and assistance to develop ineffectiveness claims in state

postconviction.

(Doc. 234 at 3.) The other two alternative grounds will be discussed below.

B. The Mandate Rule Issue

1. Parties’ Arguments

a. Petitioner’s Original Memorandum (Doc. 234-1)

Petitioner opens by arguing that the law of the case doctrine only applies to questions that

were “actually decided, rather than all questions in the case that might have been decided but were

not.” (Doc. 234-1 at 15 (citation omitted).) Decisions are implicitly decided if they are fully

briefed and “necessary predicates to the court’s ability to address the issue or issues specifically

discussed[,]” but if a issue was not briefed on appeal, it was not decided. (Doc. 234-1 at 15

(citations omitted).) Similarly, an issue is not waived if the appellee did not fully brief it in support

of his affirming the district court judgment. Moreover, a denial of request for rehearing is not law

of the case. Petitioner also asserts that the mandate rule—which purportedly says a district court

“cannot vary [the mandate] or examine it for any other purpose than execution”—is “only

controlling as to matters within its compass.” (Doc. 234-1 at 16 (citations and quotations omitted).)

The district court can decide matters left open by the mandate.

Here, according to Petitioner, the Fifth Circuit based its conclusion only on the fact that

Judge Brady erred in finding that Gisleson was ineffective in state post-conviction proceedings.

Petitioner explains:

Under the law of the case, Gisleson’s ineffectiveness cannot provide cause under

Martinez for Wessinger’s procedural default of his meritorious, but procedurally

defaulted claim of penalty phase trial counsel’s ineffectiveness. However, the panel

did not reverse the district court’s rulings that Wessinger’s Claim XI-C penalty

phase ineffectiveness claim filed in his amended petition properly related back to

and amended the original timely habeas petition and was a meritorious claim of

violation of Wessinger’s Sixth Amendment rights for which habeas relief should

be granted, all district court rulings which were briefed and argued on appeal and

which remain intact. Thus, the law of the case doctrine does not prevent this Court

from considering in the present motion, which relies upon cause for excusing the

procedural default of Wessinger’s meritorious Sixth Amendment claim of

ineffective assistance of penalty phase trial counsel based upon the inadequacies of

the state court process and policies, which was not reached by the district court nor

decided by the Fifth Circuit.

(Doc. 234-1 at 16–17.) The same reasoning applies to the mandate rule; the fact that the Fifth

Circuit simply “reversed” Judge Brady and did not say “reversed and remanded” does not warrant

a different result. Petitioner concludes:

The Fifth Circuit panel reversed Judge Brady’s ruling on the limited issue of cause

under Martinez, and on no other basis. The appellate court’s judgment of reversal

did not order the dismissal the habeas petition or otherwise rule on the merits of the

habeas petition so as to bar further proceedings in this Court. Thus, authority is now

vested in this Court to consider the basis for excusing the procedural default of

petitioner’s ineffectiveness claim set forth in this motion and not previously

addressed by this Court or the Fifth Circuit.

(Doc. 234-1 at 18.)

b. Respondent’s Opposition (Doc. 244)

Respondent begins with a lengthy recitation of the procedural history. Respondent argues

that, after Judge Brady’s Rule 59(e) ruling, “[b]oth parties focused on the applicability of the

Martinez case, and neither addressed any alternative theories for proving cause and prejudice,

because Judge Brady’s ruling was limited to the Martinez claim and necessarily excluded any other

proffered basis for establishing cause and prejudice.” (Doc. 242-1 at 4.) Respondent then

highlights that Petitioner purportedly said in briefing before the district court that his claim was

“ineffective assistance of his initial review counsel at the state level, as recognized by the Supreme

Court in Martinez[.]” (Doc. 242-1 at 5 (quoting Doc. 156 at 4–5).) Respondent then reviews the

Fifth Circuit decision, emphasizing that Petitioner “failed to establish cause (initial-review

counsel’s deficient performance) or prejudice (counsel’s errors had an adverse effect on the

defense).” (Doc. 242-1 at 6.) After all of this, Respondent argues:

Based on this finding, the Fifth Circuit has already determined the issue related to

cause and prejudice which petitioner attempts to re-litigate in the instant motions.

Further, the net result of the Fifth Circuit’s ruling was one of two possible results.

First, the district court was incorrect when it vacated its initial ruling on the merits,

in which case, the original judgment on the merits remains in effect. Alternatively,

Judge Brady’s ruling that this claim is procedurally barred is still in effect, and

petitioner has failed to establish cause and prejudice to overcome that procedural

bar and the jurisprudence related to the procedural bar.

(Doc. 242-1 at 6.)

Respondent argues that Petitioner “ignores” Judge Brady’s ruling, “which established the

only basis available to petitioner by which the federal courts could consider his procedurally

defaulted claim,” and “misinterprets” the Fifth Circuit’s decision, which essentially reinstates

Judge Brady’s prior rulings finding Petitioner’s claims procedurally barred. (Doc. 244 at 8.)

Respondent emphasizes that, though Judge Brady found questions of fact and law on the issue of

“ineffectiveness through denial of funds,” petitioner did not brief any of these issues. (Doc. 244 at

9.) Further, the Fifth Circuit’s ruling precludes any second review by this Court. Respondent

asserts, “Petitioner should not be allowed to argue a basis for cause and prejudice that he has either

failed to raise previously or has waived by abandonment.” (Doc. 244 at 13.) Petitioner never

established this as a viable ground for overcoming the procedural bar, but, to the extent he raised

it, he did “not pursue it” but rather “relied on the Martinez method until that failed.” (Doc. 244 at

13.)

According to Respondent, Petitioner argues that the “procedural default of Claim XI-C can

be excused because the state refused to provide the requested necessary funding for mitigation and

other expert assistance . . . such that the state corrective process was ineffective to protect

petitioner’s rights[,]” but Respondent attacks this argument (Doc. 244 at 14.) First, according to

Respondent, Petitioner failed to demonstrate how state corrective process could satisfy the cause

and prejudice requirements at his first evidentiary hearing. Second, Judge Brady’s ruling

demonstrates that he was aware of Petitioner’s alternative theory, yet Petitioner did not discuss the

issue in pre-hearing or post-hearing briefing; he instead relied on the Martinez claim. Having

failed to brief the issue, the Court should deem it waived or find that Judge Brady “implicit[ly]

reject[ed]” it. (Doc. 244 at 15.) Respondent then distinguishes Petitioner’s cases which allegedly

find that a state’s systematic failure to provide relief can excuse an unexhausted claim.

c. Petitioner’s Reply (Doc. 245)

Petitioner argues that Judge Brady’s rulings on the Rule 59(e) motion and in which he

granted habeas relief neither “referenced, much less rejected, the failure of the state corrective

process as a basis for cause and prejudice.” (Doc. 245 at 2.) Further, Judge Brady’s opinion

granting habeas relief specifically mentioned the fact that state post-conviction counsel sought

funding and assistance, “all to no avail.” (Doc. 245 at 2 (citing Doc. 216 at 3–4).) Judge Brady’s

decisions do not constitute a “decision, implicit or otherwise, that the extraordinary circumstances

and policies in existence in Louisiana at the time – that denied state post-conviction counsel the

necessary resources and tools to represent Wessinger effectively – were faultless or that the state

corrective process was effective to protect Wessinger’s rights.” (Doc. 245 at 2.) Further, “res

judicata does not apply in federal habeas corpus[.]” (Doc. 245 at 2.) Petitioner concludes, “The

State of Louisiana should not be allowed, through its own processes and policies, to make it

impossible for state post-conviction counsel to do his job and then hold petitioner accountable with

his life for state post-conviction counsel’s unavoidable failures.” (Doc. 245 at 3.)

2. Applicable Law

a. Law of the Case Doctrine

“ ‘The law of the case doctrine, as formulated in this circuit, generally precludes

reexamination of issues of law or fact decided on appeal, either by the district court on remand or

by the appellate court itself on a subsequent appeal.’ ” Alpha/Omega Ins. Servs., Inc. v. Prudential

Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (quoting Todd Shipyards Corp. v. Auto Transp.,

763 F.2d 745, 750 (5th Cir. 1985)). “As [the Fifth Circuit has] noted, it is premised ‘on the salutary

and sound public policy that litigation should come to an end.’ ” Id. (quoting Terrell v. Household

Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir. 1974) (quoting White v. Murtha, 377 F.2d 428,

431 (5th Cir. 1967))).

“The doctrine's reach does have its limits.” Id. “For example, unlike res judicata, the law

of the case doctrine applies only to issues that were actually decided, rather than all questions in

the case that might have been decided, but were not.” Id. (citing Morrow v. Dillard, 580 F.2d 1284,

1290 (5th Cir. 1978)). “But, the issues need not have been explicitly decided; the doctrine also

applies to those issues decided by ‘necessary implication.’ ” Id. (quoting In re Felt, 255 F.3d 220,

225 (5th Cir. 2001)). “In other words, even when issues have not been expressly addressed in a

prior decision, if those matters were ‘fully briefed to the appellate court and . . . necessary

predicates to the [court's] ability to address the issue or issues specifically discussed, [those issues]

are deemed to have been decided tacitly or implicitly, and their disposition is law of the case.’ ”

Id. (quoting In re Felt, 255 F.3d at 225).

Additionally, the Fifth Circuit’s “denial of a motion for panel rehearing does not amount

to a decision on the merits.” Alpha/Omega Ins. Servs., 272 F.3d at 281 (citing Fernandez v.

Chardon, 681 F.2d 42, 51 n.7 (1st Cir. 1982) (“[T]he denial of a petition for rehearing can have

no greater precedential effect than the denial of a petition for certiorari, which is to say none.”),

aff'd, 462 U.S. 650, 103 S. Ct. 2611, 77 L. Ed. 2d 74 (1983); Crider v. Keohane, 526 F. Supp. 727,

728 (W.D. Ok. 1981) (“[T]he failure of the Petition for Rehearing does not imply any judgment

on the merits of this issue.”)).

“The law of the case doctrine, however, is an exercise of judicial discretion which ‘merely

expresses the practice of courts generally to refuse to reopen what has been decided,’ not a limit

on judicial power.” United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (quoting Messinger v.

Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L.Ed. 1152 (1912); United States v. Matthews, 312

F.3d 652, 657 (5th Cir. 2002) (“Matthews II”)). “The doctrine, therefore, ‘is not “inviolate,” ’ but

rather permits an appellate court or a district court on remand to deviate from a ruling made by a

court of appeal in an earlier stage of the same case in certain exceptional circumstances.” Id.

(quoting Matthews II, 312 F.3d at 657 (citing United States v. Becerra, 155 F.3d 740, 752 (5th Cir.

1998))). “Three exceptions to the law of the case doctrine permit a court to depart from a ruling

made in a prior appeal in the same case: ‘(1) The evidence at a subsequent trial is substantially

different; (2) there has been an intervening change of law by a controlling authority; and (3) the

earlier decision is clearly erroneous and would work a manifest injustice.’ ” Id. at 320 n.3 (quoting

Matthews II, 312 F.3d at 657 (quoting Becerra, 155 F.3d at 752-53)).

b. The Mandate Rule

“These principles apply equally to the mandate rule, ‘which is but a specific application of

the general doctrine of law of the case.’ ” Lee, 358 F.3d at 321 (quoting Matthews II, 312 F.3d at

657). “Absent exceptional circumstances, the mandate rule compels compliance on remand with

the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided

by the appellate court.” Id. (citing United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).

“Moreover, the rule bars litigation of issues decided by the district court but foregone on appeal or

otherwise waived, for example because they were not raised in the district court.” Id. (citing Bell,

988 F.2d at 250). “Accordingly, a lower court on remand ‘ “must implement both the letter and

the spirit of the appellate court's mandate and may not disregard the explicit directives of that

court.” ’ ” Id. (quoting Matthews II, 312 F.3d at 657 (quoting Becerra, 155 F.3d at 753) (internal

alterations and quotation marks omitted))). “In implementing the mandate, the district court must

‘tak[e] into account the appellate court's opinion and the circumstances it embraces.’ ” Id. (quoting

Sobley v. Southern Natural Gas Co., 302 F.3d 325, 333 (5th Cir. 2002) (citing Tollett v. City of

Kemah, 285 F.3d 357, 364 (5th Cir. 2002) (internal citation omitted))). To determine whether this

Court can, on remand, address the issues currently before it, “this court must determine the scope

of [the Fifth Circuit] mandate in [its] opinion” reversing Judge Brady’s granting of the petition for

writ of habeas corpus. Lee, 358 F.3d at 321 (citing Matthews II, 312 F.3d at 658; Moore v.

Anderson, 222 F.3d 280, 283 (7th Cir. 2000) (stating that a “careful reading of the reviewing court's

opinion” is required “[t]o determine what issues were actually decided by the mandate”)).

Critically, “the [mandate] rule bars litigation of issues decided by the district court but

foregone on appeal or otherwise waived, for example because they were not raised in the district

court.” Lee, 358 F.3d at 321 (citing Bell, 988 F.2d at 250). “Accordingly, a district court cannot

‘reconsider its own rulings made before appeal and not raised on appeal.’ ” United States v.

Bazemore, 839 F.3d 379, 385 (5th Cir. 2016) (per curiam) (quoting 18B Charles Alan Wright et

al., Federal Practice and Procedure § 4478.3 (2d ed. 2016)). That is, “[o]n remand, the only

issues properly before the district court were those that arose from the remand.” United States v.

Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing Lee, 358 F.3d at 323). “ ‘All other issues not

arising out of this court's ruling and not raised in the appeals court, which could have been brought

in the original appeal, are not proper for reconsideration by the district court below.’ ” Id. (quoting

Lee, 358 F.3d at 323 (emphasis in Lee)).

Numerous cases illustrate how the mandate rule applies. For instance, in Bell, defendant

was sentenced as an armed career criminal. Bell, 988 F.2d at 249. At the sentencing, defendant

made no objection to the fact that he had been convicted “of a half-dozen violent crimes listed in

the PSI Report,” and, indeed, statements by defendant and defense counsel ratified the accuracy

of the PSI. Id. Defendant was sentenced in excess of 30 years, and he appealed. Id. The First

Circuit reversed, finding that “where the offense of conviction is the offense of being a convicted

felon in knowing possession of a firearm, the conviction is not for a ‘crime of violence’ and that,

therefore, the career offender provision of the federal sentencing guidelines does not apply.” Id.

On remand, defendant challenged for the first time his prior convictions and his status under the

Armed Career Criminal Act (“ACCA”). Id. The district court ruled the objection untimely, and

defendant again appealed. Id. at 249-50.

Looking at the mandate rule, the Second Circuit affirmed, explaining:

It is readily evident, therefore, that neither the letter nor the spirit of our mandate is

consistent with the turnaround that Bell proposes today: starting the sentencing

pavane from scratch following remand. Rather than obligating the district court to

examine the validity of Bell's previous convictions, our mandate, read in the most

plausible manner, constrained the district court from considering on remand a

collateral challenge that defendant had, from all appearances, deliberately

bypassed.

The black letter rule governing this point is that a legal decision made at one stage

of a civil or criminal case, unchallenged in a subsequent appeal despite the

existence of ample opportunity to do so, becomes the law of the case for future

stages of the same litigation, and the aggrieved party is deemed to have forfeited

any right to challenge that particular decision at a subsequent date. See

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.

Cir. 1987); see also United States v. Duchi, 944 F.2d 391, 393 (8th Cir. 1991)

(standing for the proposition that arguments in the alternative, like other challenges,

must be brought before an appellate court lest an ensuing ruling become the law of

the case). Abandoning this prudential principle would threaten the important policy

considerations underlying the law of the case doctrine, such as “stability in the

decisionmaking process, predictability of results, proper working relationships

between trial and appellate courts, and judicial economy.” United States v. Rivera-

Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S. Ct. 184,

116 L. Ed. 2d 145 (1991).

Bell, 988 F.2d at 250. The Second Circuit concluded:

The law of the case doctrine dictates that all litigation must sometime come to an

end. See Arizona v. California, 460 U.S. 605, 619, 103 S. Ct. 1382, 1391, 75 L. Ed.

2d 318 (1983). Here, appellant has provided us with no valid reason to depart from

this policy and overturn the district court's refusal to resuscitate an issue previously

agreed upon and decided in the case.

Bell, 988 F.2d at 252.

Bell was cited with approval in Lee, where the Fifth Circuit found that a mandate did not

“prohibit[] the district court from reconsidering and imposing a discretionary upward departure[.]”

Id. at 320. The appellate court based this reasoning on the fact that the “district court reconsidered

an unappealed sentencing issue-a discretionary upward departure- that could not have been raised

in the initial appeal.” Id. at 323 (emphasis in original). Further, the issue was not waived; “the

record in this case amply justifies the government’s earlier silence quite simply because the

enhancement at issue was not appealable in the initial appeal.” Id. at 324. “[O]ur mandate rule

does not require that a party raise unappealable sentencing issues in anticipation of every possible

contingency that may make such issues germane at a later stage of the proceedings.” Id. Lastly,

the issue “arose out of the correction of the sentence [ordered by the Fifth Circuit],” id. at 320 n.3,

which is to say it was “made newly relevant by the court of appeal’s decision-whether by the

reasoning or the result,” id. at 326 (alterations, quotations, and citations omitted).

Griffith in turn relied on Lee to find that the mandate rule barred some, though not all,

issues. Griffith, 522 F.3d at 610–11. The Fifth Circuit first explained:

On remand, the only issues properly before the district court were those that arose

from the remand. [Lee, 358 F.3d at 323]. “All other issues not arising out of this

court's ruling and not raised in the appeals court, which could have been brought in

the original appeal, are not proper for reconsideration by the district court below.”

Id. It follows that an objection to a sentence must be appealed for the district court,

on remand, to have authority to revisit it.

Id. at 610. The appellate court next found that several objections “fit squarely within the waiver

doctrine announced in Lee.” Id. The circuit court explained:

Neither defendant has demonstrated why he was unable to appeal his issue in the

initial appeal. Each did appeal the leadership enhancements, which we reversed.

[(citation omitted)]. It does not follow that because they appealed one aspect of the

sentence, they preserved every other objection for review on remand. In fact,

because they had already objected in the district court on those very grounds, they

had every incentive and opportunity to appeal the sentence on those grounds as

well. Because they did not, the arguments are waived.

Id. Defendant also “waived the issue of a decrease for his limited participation in the conspiracy,

because he did not raise it in” the Fifth Circuit on the first appeal.” Id. “The issue is deemed

waived on this appeal as well, unless ‘there was no reason to raise it in the initial appeal.’ ” Id.

(quoting Lee, 358 F.3d at 324). Here, “[t]here were certainly reasons to raise the issue of a decrease

in the initial appeal[,] so “[t]he arguments presented by [those defendants were] waived according

to the mandate rule announced in Lee.” Id. at 610-11. However, the mandate rule did not bar two

other defendants from requesting decreases; the appellate court explained, “Because neither

defendant's prospective conspiracy sentences was germane to the original appeal, wholly because

there was nothing related to sentencing to appeal, the mandate rule does not apply.” Id. at 611.

Lastly, in United States v. Bagley, 639 F. App'x 231 (5th Cir. 2016) (per curiam), the Fifth

Circuit had “vacated the district court's restitution order and remanded for modification consistent

with [its] opinion.” Id. at 231. “On remand, the district court resentenced [defendant] de novo and

imposed a fine in lieu of restitution.” Id. Relying on United States v. Marmolejo, 139 F.3d 528,

531 (5th Cir. 1998) (which was examined closely by the Lee court), the Fifth Circuit found that

the district court violated the rule of mandate, explaining:

[T]he district court initially decided not to impose a fine due to Bagley's inability

to pay. The issue of a fine was not raised on appeal and our prior opinion did not

discuss it. While the district court may have thought that restitution was closely

related to the issue of a fine, our decision did not open the door for the court to

reconsider an issue not raised by the parties or ruled on by this Court on appeal.

Id. at 233.

3. Application

Though the Court is sympathetic to Petitioner’s position, it is bound to apply the mandate

rule as interpreted by the Fifth Circuit. Petitioner’s motion must thus be denied.

The Court finds that the decision turns on Judge Brady’s judgment and the Fifth Circuit

opinion. Judge Brady specifically granted the petition for writ of habeas corpus solely “as to Claim

XI-C (Penalty Phase Ineffective Assistance of Counsel)” but expressly stated, “All other claims

are denied.” (Doc. 217.) Thus, Judge Brady rejected “[a]ll other claims,” including the

“ineffectiveness through denial of funds theory” that was raised in the Rule 59 motion but not fully

litigated at the hearing. Petitioner did not appeal that part of the judgment despite having the

ability to do so. Indeed, Petitioner had every reason to appeal that part of Judge Brady’s judgment,

as he needed to preserve the issue in the event that the Fifth Circuit reversed the granting of the

habeas petition. And the appeal could have been as simple as arguing that Judge Brady was

premature to dismiss this alternate ground given the fact that the record had not been developed

on the issue.

The Fifth Circuit ultimately did reverse Judge Brady, focusing solely on the conclusion

that “the district court erroneously determined that Gisleson’s initial-review representation of

Wessinger was deficient” (Doc. 230 at 7) and “REVERS[ING] the district court’s grant of habeas

relief.” (Doc. 230 at 11.) Again, the Fifth Circuit did not address the ineffective state corrective

process now advanced by Petitioner precisely because it was not raised by him on appeal, despite

compelling reasons to do so. And, further, the letter and spirit of the Fifth Circuit’s decision was

to reverse solely on the above ground and to leave in place Judge Brady’s judgment denying relief

for “[a]ll other claims[.]” (Doc. 217.)

Consequently, this Court finds that, under Fifth Circuit case law, it is barred by the mandate

rule from considering Petitioner’s latest theory. See Marmolejo, 139 F.3d at 531 (affirming district

court’s refusal “to hear new evidence presented on the issue of acceptance of responsibility and

obstruction of justice” because “the resentencing court can consider whatever this court directs-no

more, no less. All other issues not arising out of this court's ruling and not raised before the appeals

court, which could have been brought in the original appeal, are not proper for reconsideration by

the district court below.”); United States v. Skelton, 252 F.3d 1356 (5th Cir. 2001) (unpublished

per curiam) (affirming sentence because appellate court was “not persuaded that Skelton could not

have raised in his initial appeal the issue of whether affirmance of his conviction on less than all

counts required reconsideration of the determination that Skelton's offense substantially

jeopardized the soundness of Westheimer Bank.”); United States v. Alvarez, 575 F. App'x 522,

526 (5th Cir. 2014) (per curiam) (“The district court's interpretation of our remand was correct.

Consequently we will not consider Alvarez's objections to his PSR and Guidelines calculations

that could have been made at the time of his original sentencing but were not.”); Bagley, 639 F.

App'x at 233 (finding, where Fifth Circuit initially reversed imposition of restitution, that the

district court was barred on remand from imposing a fine because, “[w]hile the district court may

have thought that restitution was closely related to the issue of a fine, our decision did not open

the door for the court to reconsider an issue not raised by the parties or ruled on by this Court on

appeal”); Bazemore, 839 F.3d at 392 (“Bazemore objected that his proffer agreement precluded

the Government from using this information, but the district court expressly overruled that

objection. Bazemore failed to challenge that ruling when he appealed his first sentence. His failure

to do so bars him from making this argument now[,]” as “Bazemore had every reason to raise this

alleged error when appealing his first sentence.”); see also Bell, 988 F.2d at 250 (“The black letter

rule governing this point is that a legal decision made at one stage of a civil or criminal case,

unchallenged in a subsequent appeal despite the existence of ample opportunity to do so, becomes

the law of the case for future stages of the same litigation, and the aggrieved party is deemed to

have forfeited any right to challenge that particular decision at a subsequent date.”); cf. Lee, 358

F.3d at 323–26 (finding mandate rule was no bar when, unlike the instant case, “unappealed

sentencing issue . . . could not have been raised in the initial appeal” and was “made newly relevant

by the court of appeal’s decision-whether by the reasoning or the result” (emphasis in original));

General Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 454 (5th Cir. 2007) (“Because GUS failed

to brief, and thus waived, any arguments against the Customer Defendants on appeal, the district

court's judgment finally disposed of any claims against those defendants. As a result, our remand

in the prior opinion [reversing summary judgment and remanding as to single claim against other

defendant] did not include any claims against the Customer Defendants. Therefore, we affirm the

magistrate judge's grant of summary judgment to the Customer Defendants.”). Petitioner’s motion

is thus denied.

C. Other Grounds for Relief

Petitioner also seeks, as alternatives, a federal evidentiary hearing on the issues of cause

and prejudice and for relief under Federal Rule of Civil Procedure 60(b)(6), which relieves a party

from a final judgment for “any other reason that justifies relief.” Respondent argues that Petitioner

already received one hearing and is not entitled to another. Further, Respondent asserts that the

Rule 60(b)(6) motion should be denied because, inter alia, it is untimely.

For the same reasons articulated above, the Court denies Petitioner’s alternative grounds

for relief. The Court finds that Petitioner is not entitled to a federal evidentiary hearing on cause

and prejudice, as, again, this is foreclosed by the mandate rule.

The same result is warranted as to Petitioner’s motion under Rule 60(b)(6). Preliminarily,

the Court agrees with Respondent that this motion is untimely. “A motion under Rule 60(b)(6)

must be made within a reasonable time, unless good cause can be shown for the delay.” Clark v.

Davis, 850 F.3d 770, 780 (5th Cir.), cert. denied, 138 S. Ct. 358, 199 L. Ed. 2d 266 (2017)

(citations and quotations omitted). “Reasonableness turns on the ‘particular facts and

circumstances of the case.’ ” Id. (quoting Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d

1404, 1410 (5th Cir. 1994)). The Fifth Circuit “consider[s] ‘whether the party opposing the motion

has been prejudiced by the delay in seeking relief and . . . whether the moving party had some

good reason for his failure to take appropriate action sooner.’ ” Id. (quoting Lairsey v. Advance

Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976) (quoting 11 Wright & Miller, Federal Practice

& Procedure § 2866, at 228-29)). “[T]imeliness . . . is measured as of the point in time when the

moving party has grounds to make [a Rule 60(b)] motion, regardless of the time that has elapsed

since the entry of judgment.” Id. (citing First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d

117, 120 (5th Cir. 1992)).

Here, the Supreme Court denied the petition for writ of certiorari on March 6, 2018, and

Petitioner filed the instant motion on August 30, 2019. This delay is seventeen months. Petitioner

has provided no “good reason for his failure to take appropriate action sooner.” Clark, 850 F.3d at

780. The Court agrees with Respondent that, in this case, seventeen months is not “within a

reasonable time.” See Clark, 850 F.3d at 782 (finding delays of twelve and sixteen months were

untimely under Rule 60(b)(6)). As the Fifth Circuit stated in Clark:

This court and others have concluded that periods of delay similar to or shorter than

the period at issue here can constitute unreasonable delay under Rule 60(b). [See,

e.g., Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) (eight

months after change in law was untimely); Trottie v. Stephens, 581 Fed. Appx. 436,

438 (5th Cir. 2014) (per curiam) (three years from district court denial of petition

and over a year from denial of a COA not timely); Buck v. Thaler, 452 Fed. Appx.

423, 429-30 (5th Cir. 2011) (per curiam) (over a year after denial of certiorari and

no extenuating circumstances not within reasonable time); cf. Lewis v. Lewis, 326

Fed. Appx. 420, 420 (9th Cir. 2009) (mem.) (unpublished) (six-month delay

without any explanation not reasonable); Tredway v. Parke, 79 F.3d 1150, at *1

(7th Cir. 1996) (unpublished) (five-month delay was unreasonable when motion

only challenged court’s prior analysis).] In Tamayo v. Stephens, [740 F.3d 986, 991

(5th Cir. 2014) we affirmed the district court’s judgment, which held that a Rule

60(b) motion, filed nearly eight months after the pertinent change in decisional law,

was untimely. [Tamayo, 740 F.3d 986, 991 (5th Cir. 2014).] In Pruett v. Stephens,

the petitioner waited more than nineteen months after Trevino was decided to file

his Rule 60(b) motion. [Pruett, 608 Fed. Appx. at 186.] We concluded that the

district court did not abuse its discretion in holding the motion was not filed within

a reasonable time. [Id.]

Clark, 850 F.3d at 782 & nn.63–66. For the same reasons, the Court finds that Petitioner’s motion

for relief under Rule 60(b)(6) is untimely.

Nevertheless, even putting that aside, the Court finds that, given the above findings on the

mandate rule, relief under Rule 60(b)(6) is not warranted. On this additional ground, Petitioner’s

motion is denied.

IV. Conclusion

Accordingly,

IT IS ORDERED that the Petitioner’s Motion for Summary Judgment, or, in the

Alternative, for an Evidentiary Hearing on Cause and Prejudice, or, in the Alternative, for Relief

from Judgment (Doc. 234) filed by Petitioner Todd Kelvin Wessinger is DENIED.

Signed in Baton Rouge, Louisiana, on December 19, 2019.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT