The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL GITTEMEIER, )
)
Petitioner, )
)
vs. ) Case No. 4:18-CV-966 SRW
)
DON PHILLIPS AND DOMINIQUE )
CUTTS,1 )
)
Respondent(s). )
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion to Alter or Amend Judgment, or in
the Alternative for a Certificate of Appealability, together with a Memorandum in Support. (ECF
No. 25, 26). Respondents filed a response in opposition. (ECF No. 28). No reply has been filed,
and the time for doing so has passed. Both parties have consented to the exercise of plenary
authority by a United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons set forth
below, the Motion to Alter or Amend Judgment, or for a Certificate of Appealability, is denied.
I. PROCEDURAL HISTORY
Petitioner was convicted of driving while intoxicated and trespass in the first degree and
sentenced to 15 years in prison. After completing his appeals and post-conviction relief in state
court, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF
No. 1). Petitioner asserted eight grounds for relief in his petition. In his first ground he claimed
1 During the pendency of this case, the Board of Probation and Parole released Petitioner on parole, and he is no
longer incarcerated in a correctional facility. Pursuant to Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts, Respondent is the state officer who has custody. Therefore, Don Phillips, Chairman of
the Division of Probation and Parole, and Dominque Cutts, the parole officer responsible for supervising Petitioner,
should be substituted in lieu of Terri Lawson as proper party respondents. See 28 U.S.C. § 2254, Rule 2(b),
Advisory Committee Notes.
his conviction was not supported by sufficient evidence. In the remaining seven grounds, he
asserted various ineffective assistance of counsel claims. The Court denied the petition and did
not grant a certificate of appealability on any ground. (ECF No. 23). Petitioner now asks the
Court to reconsider its denial of his petition or, in the alternative, to grant him a certificate of
appealability.
II. DISCUSSION
A. Motion to Alter or Amend Judgment
Federal Rule of Civil Procedure 59(e) allows a party to seek to alter or amend a judgment
within 28 days after the entry of the judgment. Rule 59(e) was adopted to make clear that the
district court possesses the power “‘to rectify its own mistakes in the period immediately
following’ its decision.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (quoting White v. New
Hampshire Dept. of Employment Security, 455 U.S. 445, 450 (1982)). Rule 59(e) motions are
used to correct “manifest errors of law or fact, or to present newly discovered evidence.” United
States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative
Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998); and Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.1988)). “[C]ourts will
not address new arguments or evidence that the moving party could have raised before the
decision issued.” Banister, 140 S. Ct. at 1703.
Relief pursuant to this rule is subject to a court’s broad discretion. Briscoe v. Cty. of St.
Louis, Mo., 690 F.3d 1004, 1015-16 (8th Cir. 2012). A court abuses its discretion when it fails to
consider an important factor, assigns significant weight to an irrelevant or improper factor, or
commits a clear error of judgment weighing those factors. Simmons v. United States, No.
4:11CV01983 ERW, 2013 WL 798046, at *3 (E.D. Mo. March 5, 2013) (citing Rattray v.
Woodbury Cty., Iowa, 908 F. Supp. 2d 976, 1008 (N.D. Iowa 2012)). A court does not abuse its
discretion in denying a Rule 59 motion when the purpose of the motion is to repeat arguments
the district court already rejected. See Preston v. City of Pleasant Hill, 642 F.3d 646, 652 (8th
Cir. 2011).
1. Sufficiency of the Evidence
The petition first argued Petitioner’s conviction for driving while intoxicated was not
supported by sufficient evidence. In his Rule 59(e) motion, Petitioner notes this Court found the
Missouri Court of Appeals’ holding that sufficient evidence existed to show Petitioner drove the
ATV while intoxicated was neither incorrect nor an objectively unreasonable application of
clearly established law. This Court also found that the appellate court did not make an
unreasonable determination of the facts and identified the correct controlling authority. (ECF No.
26, at 6).
The Court has carefully considered Petitioner’s Rule 59(e) Motion as it relates to this
claim. The Court does not find any manifest errors of law or fact which need to be corrected, nor
did Petitioner present any newly discovered evidence. Petitioner states that a sufficiency of the
evidence claim is “fact-intensive” and “deserving of further scrutiny on appeal.” Id. at 7. He
further alleges this issue could be resolved differently and “deserves further proceedings.” Id.
However, a court reviewing a sufficiency of the evidence decision “considers only the ‘legal’
question ‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Musacchio v. United States, 577 U.S. 237, 243 (2016) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original)). If the reviewing court so finds, sufficient evidence
supports the conviction, and due process has been satisfied. Jackson, 443 U.S. at 319.
This Court only has the purview to grant relief if, in viewing the evidence in the light
most favorable to the prosecution, the jury’s finding of guilt was so “insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 640, 656 (2012). That did
not occur in Petitioner’s case. Petitioner was observed driving his ATV with a bottle of liquor in
his hand, smelled of alcohol, and was visibly intoxicated at the time of his arrest. (ECF No. 23, at
2, 7-9). Petitioner’s blood alcohol content, hours after his arrest, was still well over the legal
limit. Id. More than bare rationality supports the jury’s finding that Petitioner was guilty of
driving while intoxicated. Petitioner’s Motion to Alter or Amend the Judgment will be denied as
to the sufficiency of the evidence claim.
2. Ineffective Assistance of Counsel Claims
The Petitioner also alleged seven claims of ineffective assistance of counsel as grounds
two through eight. Petitioner claims the Court erred in finding the Martinez exception did not
apply to the procedural default of his ineffective assistance of counsel claims. In response, the
State argues Petitioner’s motion repeats his arguments from his petition as to the merits of his
grounds for relief, and thus provides no basis for reconsideration under Rule 59(e).
In this case, Petitioner filed a pro se Rule 29.15 motion raising a single claim that his trial
counsel was ineffective for failing to challenge whether an ATV is a motor vehicle under
Missouri law. (ECF No. 9-7, at 11). The circuit court then appointed counsel who moved for, and
was granted, a 30-day extension of time to file an amended motion. Petitioner retained private
motion counsel who moved for an additional 60-day extension of time to file an amended PCR
motion. (ECF No. 9-7, at 4). The motion court rescinded the appointment of counsel and granted
private counsel’s motion for an extension of time to file an amended PCR motion. Id. Private
counsel filed an amended PCR motion asserting 23 claims of ineffective assistance of counsel.
The amended PCR motions raised all but ground seven of the claims raised in the federal habeas
petition. The circuit court held an evidentiary hearing on the amended PCR motion and denied
all 23 claims. (ECF No. 9-7, at 62-73). Petitioner appealed. The Missouri Court of Appeals,
Eastern District, prepared an opinion, but ultimately transferred the case to the Supreme Court of
Missouri. (ECF No. 9-11); and Gittemeier v. State, 527 S.W.3d 64 (Mo. 2017).
The Supreme Court of Missouri held the amended PCR motion was filed after the
mandatory deadline as clarified in Stanley v. State, 420 S.W.3d 532 (Mo. 2014). Stanley
determined Rule 29.15(g) allows a circuit court to extend the time for filing an amended motion
for only one additional period, no longer than 30 days. Petitioner’s private motion counsel
requested and received an extension of time to file his amended motion under authority the
circuit court did not have; therefore, the amended PCR motion was ruled untimely. Gittemeier,
527 S.W.3d at 68. The Supreme Court of Missouri only considered the issue raised in
Petitioner’s pro se motion, which is a claim not presented to this Court. Id. at 71-72.
“[A] state prisoner must exhaust available state remedies before presenting his claim to a
federal habeas court.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citing 28 U.S.C. §
2254(b)(1)(A)). Exhaustion requires “one complete round of the State's established appellate
review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “A failure to exhaust
remedies properly in accordance with state procedure results in procedural default of the
prisoner's claims.” Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citing O'Sullivan, 526 U.S.
at 848)).
The Court found Petitioner’s ineffective assistance of counsel claims were procedurally
defaulted. Petitioner could avoid procedural default only by showing that there was cause for the
default and resulting prejudice, or that a miscarriage of justice will result from enforcing the
procedural default in Petitioner's case. See Wainwright v. Sykes, 433 U.S. 72, 87, 90–91 (1977).
In order to establish cause, Petitioner must show that “some objective factor external to the
defense” prevented his compliance with a state procedural rule. Murray v. Carrier, 477 U.S. 478,
488 (1986). As the Stanley decision was determined after the circuit court granted private
counsel’s request for additional time, this Court found there was cause external to the defense
which prevented appellate review of Petitioner’s PCR claims. (ECF No. 23, at 12).
“Cause,” however, is not synonymous with “a ground for relief.” A finding of
cause and prejudice does not entitle the prisoner to habeas relief. It merely allows
a federal court to consider the merits of a claim that otherwise would have been
procedurally defaulted.
Martinez v. Ryan, 566 U.S. 1, 17 (2012). Martinez reversed and remanded the case to determine
if the attorneys were ineffective and to address the question of prejudice. Id. at 18. Petitioner in
this case also needed to establish prejudice, and he attempted to do so under Martinez. (ECF No.
19, at 14). Martinez required Petitioner to demonstrate his claims are substantial, “which is to say
that the prisoner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14.
(ECF No. 23, at 12).
All but one of the federal ineffective assistance of counsel claims were raised in the
amended PCR motion, they were litigated at an evidentiary hearing, decided by the motion court,
and briefed for the appeal. The only thing missing to complete the exhaustion requirement was a
decision by the appellate review process. Given this record, this Court found no need to hold an
evidentiary hearing. The Court could determine whether any of these claims demonstrated
prejudice, or they had some merit.
Petitioner argues the Court’s review applied a far stricter standard than the certificate of
appealability standard that was applied in Martinez. (ECF No. 26, at 6). He states that under this
standard, Petitioner must show that “jurists of reason could disagree” with how the issue should
be resolved. Id. (citing Buck v. Davis, 137 S. Ct. 759, 773-74 (2017)).
Buck was a capital case in which the jury could only impose a death sentence if it found
Mr. Buck was likely to commit acts of violence in the future. Mr. Buck’s trial counsel called a
psychologist who testified that Mr. Buck probably would not engage in violent conduct.
However, the psychologist also stated “one of the factors pertinent in assessing a person’s
propensity for violence was his race, and that Buck was statistically more likely to act violently
because he is black.” 137 S. Ct. at 767. At the close of the psychologist's testimony, his report
was admitted into evidence. During jury deliberations, the jury requested the psychology reports
which had been admitted into evidence. The psychologist's report was provided to the jury. The
jury returned a sentence of death. Id. at 768-69.
The same psychologist provided similar testimony in Saldano v. Texas, 530 U.S. 1212
(2000). The State of Texas confessed error on that ground and asked the Court to grant Saldano's
petition for certiorari, vacate the state court judgment, and remand the case. The Court did so.
Buck, 137 S. Ct at 769. Texas then determined the same psychologist provided similar testimony
in six other cases. Mr. Buck was one of the six. The Attorney General confessed error, waived
any available procedural defenses, and consented to resentencing in the cases of five of those six
defendants. Mr. Buck was the one defendant treated differently. Id. at 770.
Mr. Buck attempted to raise this issue without success, and in the end, requested a
certificate of appealability from the Fifth Circuit Court of Appeals. Mr. Buck was again denied.
The Supreme Court held, at the certificate of appealability stage, “the only question is whether
the applicant has shown that ‘jurists of reason could disagree with the district court's resolution
of his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.’” Id. at 773 (quoting Miller–El v. Cockrell, 537 U.S.
322, 336 (2003)). The Supreme Court reversed and remanded, finding Mr. Buck had
demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984), and an entitlement to relief under Rule 60(b)(6). Id. at 780.
This Court recognizes the standards set forth in Martinez and Buck. However, the records
in those cases are materially different from Petitioner’s case. With respect to the ineffective
assistance of counsel claims which had been raised in the amended petition, and are also
presented in this petition as grounds two through six and ground eight, the Court carefully
considered each claim to determine if there was “cause and prejudice,” and whether the claim
“had some merit.” The Court found these claims did not have merit and were not “substantial”
under the Martinez standard. None of the claims establish prejudice. Therefore, Petitioner was
procedurally barred and not entitled to habeas relief on any of these claims.
Ground seven alleged Petitioner received ineffective assistance of counsel when his trial
counsel failed to request a continuance to test a digital audio recording, but this claim was not
raised in either the pro se or amended PCR motions. The federal petition argues “if trial counsel
had requested a continuance and had Deputy Hey’s audio recording examined, there is a
reasonable probability that the outcome of the trial would have been different.” (ECF No. 1, at
34). Petitioner provides no specific facts as to how this recording would have undermined the
evidence presented at trial so as to cause a different result. A petitioner must support his claims
with specific allegations, and Petitioner failed to do so. Petitioner failed to show this ground had
any merit; therefore, it was not a “substantial” claim under Martinez. Petitioner was procedurally
barred and not entitled to habeas relief on this claim.
Petitioner’s Rule 59(e) motion did not demonstrate any manifest errors of law or fact, nor
did he present newly discovered evidence. The Court finds no basis under Rule 59(e) to alter or
amend its judgment denying Petitioner’s 28 U.S.C. § 2254 Motion. Thus, the Court will deny
Petitioner’s Motion to Alter or Amend Judgment on the ineffective assistance of counsel claims.
B. Certificate of Appealability
In his second argument, Petitioner asserts the Court erred in denying him a certificate of
appealability. A habeas petitioner is entitled to a certificate of appealability if he makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner
must prove “something more than the absence of frivolity,” but is not required to prove that
some jurists would grant the petition for habeas corpus. Barefoot v. Estelle, 463 U.S. 880, 893
(1983).
The Supreme Court, in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), articulated what
a habeas petitioner must show in order to be granted a certificate of appealability under 28 US.C.
§ 2254 when a claim has been procedurally defaulted. Langley v. Norris, 465 F.3d 861, 863 (8th
Cir. 2006). Slack created three rules to guide a court’s consideration of whether a certificate of
appealability should be issued:
1) if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims the certificate should not be issued; but 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted.
465 F.3d at 863 (citing Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002)). The Court found
Petitioner failed to establish prejudice, and therefore, his claims are clearly procedurally
defaulted. The Court also found there is no merit to his constitutional claims. Therefore,
Petitioner is not entitled to a certificate of appealability.
Petitioner argues these issues are debatable among jurists of reason. (ECF No. 26, at 3-4).
Petitioner further asserts that doubts as to whether to issue a certificate of appealability should be
resolved in favor of Petitioner. Id. at 3 (citing Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.
1997)). The Court does not agree. The Court does not find these issues are debatable among
jurist of reason, nor does the Court find doubt as to whether a certificate of appealability should
be granted. Petitioner failed to make a “substantial showing of the denial of a constitutional
right” as required by § 2253(c)(2). The Court will not alter its judgment to grant Petitioner’s
request for a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion to Alter or Amend Judgment, or in
the Alternative for a Certificate of Appealability, is DENIED.
So Ordered this 7th day of May, 2021.
/s/ Stephen R. Welby
STEPHEN R. WELBY
UNITED STATES MAGISTRATE JUDGE