United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are Petitioner's Motion to Alter or Amend
Judgment (Rec. Doc. 2471) and the Government's Opposition
(Rec. Doc. 2473). For the reasons discussed below, IT
IS ORDERED that the motion is
BACKGROUND AND PROCEDURAL HISTORY
Len Davis was charged with three counts. The first being one
count of a conspiracy to violate Kim Marie Groves'
constitutionally protected right to liberty by the use of
excessive force, while acting under the color of the law,
which resulted in her death. See Rec. Doc. 187. The
second being that petitioner's actions substantively
constituted the deprivation of rights under the color of law
pursuant to 18 U.S.C. § 242. See Id. The third
being that petitioner willfully killed Groves to prevent
communication to law enforcement of a possible federal crime.
See id. On April 24, 1996, the jury found Petitioner
guilty as to all three counts. See Rec. Doc. 524 at
receiving concurrent sentences for all three counts, Davis
filed a timely notice of appeal in which the Fifth Circuit
Court of Appeals affirmed the District Court's decisions
as to Count 1 and 2 and reversed and vacated the sentence as
to Count 3. See Rec. Doc. 714 at 3. After being
resentenced for Count 3, Petitioner again filed a notice of
appeal, and on September 2, 2010, the Fifth Circuit affirmed
his sentence. See Rec. Doc. Nos. 1542 and 2165. On
March 22, 2011, the Supreme Court of the United States denied
Petitioner's Writ of Certiorari. See Rec. Doc.
March 20, 2012, Petitioner filed a motion under 28 U.S.C.
§ 2255 for relief from his 1996 convictions.
See Rec. Doc. Nos. 2265, 2340, 2341. The motion
alleged violations of Davis' rights to due process and a
fair trial due to conflict of interest, race discrimination,
juror misconduct, and ineffective assistance of counsel at
the guilt phase trial. On September 1, 2017, this Court
ordered Petitioner to file supplemental memoranda regarding
which of his § 2255 claims might require evidentiary
hearing. See Rec. Doc. 2449. On March 22, 2018, this
Court issued its Order and Reasons denying Petitioner's
request for an evidentiary hearing and ordering that
Petitioner's claims and all other motions be dismissed.
See Rec. Doc. 2466.
59(e) motion contemplates the correctness of a judgment and
argues legal error. See Templet v. Hydrochem Inc.,
367 F.3d 473, 479 (5th Cir. 2004). Under Federal Rules of
Civil Procedure Rule 59(e), district courts have the power to
consider altering or amending a judgment that would otherwise
be final. See Burnam v. Amoco Container Co., 738
F.2d 1230 (11th Cir. 1984).
succeed under Rule 59(e), the party must show that there is a
change in controlling law, new evidence, and/or a need to
correct a clear and manifest error. See Bollinger
Shipyards Lockport, LLC v. AmClyde Engineered Prods.
Co., 2003 U.S. Dist. LEXIS 10577, at *3-4 (E.D. La. June
10, 2003). Evidence is not newly discovered evidence if it
was available before entry of the challenged decision.
See, e.g., Schiller v. Physicians Res. Group Inc.
342 F.3d 563, 567-68 (5th Cir. 2003); Waltman v.
International Paper Co., 875 F.2d 468, 473-74 (5th Cir.
1989). In addition, a petitioner does not identify a manifest
error of law or fact if he or she simply repeats arguments it
made before this court's ruling.
to the Fifth Circuit, “altering and amending a judgment
under Rule 59(e) is an extraordinary remedy that courts
should use sparingly.” Templet, 367 F.3d at
479. The court in Resolution Trust Corp. v. Holmes,
concluded that Rule 59 is not the “proper vehicle for
rehashing old arguments or advancing theories of the case
that could have been presented earlier, ” 846. F.Supp.
1310, 1316 (S.D. Tex. 1994).
to 28 U.S.C. § 2255 a prisoner may collaterally attack
his or her sentence post-conviction. 28 U.S.C. § 2255
[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.
where the motion, files, and records of the case conclusively
show that the prisoner is entitled to no relief, the Court
may deny a 28 U.S.C. § 2255 motion without an
evidentiary hearing. U.S. v. Auten, 632 F.2d 478
(5th Cir. 1980).
U.S.C. § 2255 is “reserved for transgressions of
constitutional rights and for that narrow compass of other
injury that could not have been raised on direct appeal and,
would, if condoned, result in a complete miscarriage of
justice.” U.S. v. Capua, 656 F.2d 1033, 1037
(5th Cir. 1981). Mere conclusory allegations on a critical
issue are insufficient to raise a constitutional issue.
U.S. v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993).
“Absent evidence in the record, a court cannot consider
a habeas ...