MEMORANDUM OPINION AND ORDER ON RULE 59(e) MOTION TO ALTER OR AMEND JUDGMENT

C. LYNWOOD SMITH, Jr., District Judge.

This court entered a memorandum opinion and order on April 3, 2013, denying the petition for writ of habeas corpus filed by Arthur Lee Giles pursuant to 28 U.S.C. § 2254, and seeking relief from his state court conviction for capital murder and death sentence.2 Giles subsequently filed, pursuant to Federal Rule of Civil Procedure 59(e), a timely motion to alter or amend that judgment.3 The following day, he filed a second motion, asserting additional grounds for the same relief.4 Following consideration of the motions and the parties' briefs,5 this court concludes that both motions are due to be denied.

I. STANDARD OF REVIEW

No specific grounds for relief are stated in Federal Rule of Civil Procedure 59(e), which addresses motions to alter or amend a judgment. Instead, the rule provides only that such motions "must be filed no later than 28 days after the entry of the judgment." Fed. R. Civ. P. 59(e). Consequently, the standards for ruling upon such motions are found in case law, which generally holds that the decision of whether to alter or amend a judgment is committed to the sound discretion of the district court. See, e.g., American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985).6 Even so, the Eleventh Circuit has said that "`[t]he only grounds for granting [a Rule 59] motion are newly discovered evidence or manifest errors of law or fact.'" Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)) (first alteration supplied, second alteration in original); see also, e.g., United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (same). Rule 59(e) may not be used "to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Arthur, 500 F.3d at 1343 (quoting Michael Linet, Inc. v. Village of Wellington, Florida, 408 F.3d 757, 763 (11th Cir. 2005)); see also, e.g., Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (same). Finally, a judgment should not be altered or amended if doing so would serve no useful purpose. 11 Wright, Miller & Kane, Federal Practice and Procedure § 2810.1 (2d ed. 1995).7

II. DISCUSSION OF ISSUES RAISED IN GILES'S INITIAL MOTION TO ALTER OR AMEND THE JUDGMENT

A. Ineffective Assistance of Post-Conviction Counsel Pursuant to Martinez and Trevino8

As explained in the Memorandum Opinion previously entered in this case, a federal court cannot grant habeas relief to a state prisoner unless the petitioner has first exhausted his state court remedies. "`In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.'"9

When a state prisoner fails to present a federal constitutional claim in the state courts in a timely and proper manner, resulting in the state court's refusal to address the merits of the claim based on state procedural rules or principles, a federal habeas court also is precluded from addressing the claim — unless: (1) the state prisoner shows both (a) cause for failing to comply with the state's procedural rules, and (b) actual prejudice as a result of having failed to do so, or (2) the prisoner presents evidence showing that the federal court's failure to consider the claim would result in a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 262-63 (1989); Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977).

This so-called "procedural default doctrine" bars habeas review of state court rejections of a state prisoner's federal constitutional claims when three circumstances converge: i.e., (i) the last state court to review the claim (ii) states clearly and expressly that its disposition of the claim rests on a state-law procedural rule; and (iii) the state-law ground "is independent of the federal question and adequate to support the judgment." Coleman, 501 U.S. at 729 (emphasis supplied); see also, e.g., Harris, 489 U.S. at 262-63; Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991).

Constitutionally ineffective assistance of counsel typically can serve as "cause" to excuse a procedural default, unless the attorney's errors occurred during post-conviction collateral proceedings in state court. That exception is based upon the general rule that "[t]here is no constitutional right to an attorney in state post-conviction proceedings." Coleman, 501 U.S. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989) (applying the rule to capital cases)) (alteration supplied); see also id. at 755 ("Finley and Giarratano established that there is no right to counsel in state collateral proceedings."); id. at 757 ("Because Coleman had no right to counsel to pursue his appeal in state habeas [i.e., state post-conviction collateral proceedings], any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas.") (alteration supplied).10

As is often the case in Supreme Court jurisprudence, however, there is an exception to the exception. The Supreme Court's opinion in Coleman v. Thompson left open the question of whether a prisoner has a right to effective counsel in state post-conviction collateral proceedings that provide the first occasion to raise a claim of ineffective assistance of trial counsel. Such proceedings have been described as "initial-review collateral proceedings." Coleman suggested, but did not hold, that the Constitution may require states to provide counsel in initial-review collateral proceedings because those proceedings are "the first place a prisoner can present a challenge to his conviction." Coleman, 501 U.S. at 755.11 Thus, an initial-review collateral proceeding effectively constitutes a state prisoner's "one and only appeal" of a claim that his trial attorney was ineffective, id. at 756, thereby potentially justifying an exception to the rule that there is no constitutional right to counsel in collateral proceedings. See id. at 755; Douglas v. California, 372 U.S. 353, 357 (1963) (holding that states must appoint counsel on a prisoner's first appeal of trial errors).12

The Supreme Court carved out such an exception in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), saying that:

Id. at 1315 (emphasis supplied); see also id. at 1320 ("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."). The Martinez Court elaborated its rationale as follows:

Martinez, 132 S. Ct. at 1318-19.14

The Supreme Court's opinion in Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013), extended the Martinez exception to situations in which a state's procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. Trevino, 133 S. Ct. at 1921.

Giles relies upon Martinez and Trevino to assert that he can overcome the procedural default of several of his ineffective assistance of trial counsel claims due to the following circumstances.15

Giles filed an initial Rule 32 petition for collateral review in the state trial court, and amended the petition twice.16 The Rule 32 court subsequently held an evidentiary hearing at which both testimonial and documentary evidence was presented.17 During that hearing, Giles's

Doc. no. 82 (Petitioner's Amended Brief Showing "Cause" and "Prejudice" to Excuse Procedural Defaults of Certain Claims), at 3. Despite that representation, Giles's state post-conviction counsel did not file his third amended Rule 32 petition until August 14, 2000, which also happened to be the same day on which the trial court entered its judgment denying the claims asserted in Giles's second amended Rule 32 petition. Consequently, "the state courts did `not consider the allegations contained in [Giles's third amended Rule 32] petition because they were never properly before the circuit court.'"18 In other words, the claims asserted in the third amended petition were procedurally defaulted.

According to Giles, there is "cause" to excuse the procedural default of each of those claims because his post-conviction counsel "suffered a period of severe depression beginning in 1999 and lasting into 2000 — the time during which she was working on the Third Amended Petition."19 Giles also asserts that he was prejudiced by his attorney's failure to comply with the State's procedural rules because of his inability to present the following claims:

1. The claim that 1991 sentencing counsel labored under a conflict of interest20

Giles asserts that the court should consider his "Sixth Amendment actual-ineffectiveness claim based on the conflict of interest between [his own] interests and his [trial] lawyers' pecuniary interests created by a [state] statutory limit of 50 hours of compensation for out-of-court work."21 Giles's amended habeas petition, however, did not contain an allegation of conflict of interest between him and his trial lawyers growing out of Alabama's statutory caps on attorney compensation. Instead, the claim reads in its entirety as follows:

Doc. no. 45 (First Amended Unified Petition for Writ of Habeas Corpus Seeking Relief from Unconstitutional Trial and Conviction of Capital Murder and Sentence of Death), at 109-110 (capitalization and other emphasis in original).

The text of those paragraphs cannot reasonably be construed to raise a claim for ineffective assistance of trial counsel based upon a theory of counsel's pecuniary conflict of interest. Nor can Giles's citation to Gideon v. Wainwright, which only invokes the Supreme Court's holding "that the Fourteenth Amendment makes the Sixth Amendment's guarantee of right to counsel obligatory upon the States." Pointer v. Texas, 380 U.S. 400, 401 (1965) (citing Gideon, 372 U.S. at 342). Because Giles did not raise the pecuniary conflict of interest theory in his amended habeas petition, he cannot now avail himself of Martinez in an effort to seek review of that claim.

Moreover, even if the court were to consider Giles's argument as part of a more general ineffective-assistance-of-counsel claim, it would not succeed. This court found Giles's ineffective assistance claim on these grounds to be procedurally defaulted because "the Alabama Court of Criminal Appeals would `not consider the allegations contained in [the third amended] petition because they were never properly before the circuit court.'"22 This court also conducted a de novo review of this claim, and found it to be meritless because Giles did "not attempt to show how the compensation limits actually adversely impacted his defense. Strickland requires a showing of both a professionally unreasonable error by counsel and prejudice to the defense caused by that error. Under that theory, Giles has shown neither."23

In summary, Giles's reliance on Martinez is a moot point, and his post-judgment arguments and theories concerning the Strickland standard24 either were or could have been raised prior to judgment. There are no material errors of law or fact in connection with the decision on this claim.

2. The claim that 1991 sentencing counsel failed to investigate Giles's background25

Giles cannot rely upon Martinez for this claim either, because the claim was not procedurally defaulted. Instead, this court found the claim to be without merit after conducting a 28 U.S.C. § 2254(d) review of the Rule 32 court's dismissal of the claim for lack of specificity pursuant to Alabama Rules of Criminal Procedure 32.3 and 32.6(b).26 Additionally, and consistent with the pre-judgment position Giles himself took,27 this court conducted a 28 U.S.C. § 2254(d) review of the Rule 32 court's adjudication of the claim based on the evidence presented to it at the Rule 32 hearing.28 The court has examined Giles's arguments and finds that he is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment.29 There are no manifest errors of law or fact in the court's resolution30 of this issue.

3. Remaining claims

Giles asserts that post-conviction counsel's failure to timely file the third amended petition "meant that the state courts did not hear the ineffective assistance of trial counsel claims that were raised or adequately pleaded for the first time in the Third Amended Petition."31 To support that argument, he cites to several pages of this court's Memorandum Opinion denying habeas relief to demonstrate that this court found his ineffective assistance claims to be procedurally barred.32 He also makes a brief assertion in a footnote that post-conviction counsel's diagnosed depression supplies the cause to overcome the default of the claims, and that certain pages of Giles's pre-judgment supporting brief supply the requisite prejudice.33

Giles's blanket citations to pages of this court's Memorandum Opinion and a pre-judgment supporting brief are wholly inadequate to support a Rule 59 motion, or to justify a Martinez exception to the procedural default rule. Moreover, with regard to the singular claim for which this court actually has conducted a Martinez review, the court found that Martinez did not apply.34 Finally, as discussed in the following section, this court conducted an alternative de novo review of each of the other claims identified by Giles, and found each claim to be without merit.

In summary, none of the other claims identified by Giles warrant review under the Martinez framework.

B. Giles's Contention That the Court Failed to Apply Controlling Precedent When Determining Whether Claims Raised for the First Time in His Third Amended Rule 32 Petition Were Barred by Adequate and Independent State Grounds35

The court has examined Giles's arguments and finds that he is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment. There are no manifest errors of law or fact in the court's resolution of this issue. Moreover, although the court found the claims raised in the third amended petition to be procedurally defaulted, it alternatively found all but three claims to be without merit after conducting a de novo review.36

As for the remaining three claims, this court examined the first to determine whether cause and prejudice were present to overcome the procedural default under Martinez. It examined the other two claims to determine whether a procedural default would result in a miscarriage of justice. Neither exception to the procedural default rule was found to apply.37 Even if this court were to alternatively conduct a de novo review of these three claims, the claims would be found to be meritless for the same reasons that the exceptions to the procedural default rule did not apply.

C. Giles's Contention That the Court Misapplied Controlling Precedent When Determining Whether He Could Show Prejudice Relating to Trial Errors Affecting the Jury, When the Jury Recommended Life Imprisonment Without Parole38

The court has examined Giles's arguments and finds that he is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment. There are no manifest errors of law or fact in the court's resolution of this issue.

D. Giles's Contention That the Court Misapprehended Controlling Facts When Determining that Juror Sharon Elliott Was Not Biased, and, Missapplied Controlling Law When Concluding That Error Was Harmless39

The court has examined Giles's arguments and finds that he is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment. There are no manifest errors of law or fact in the court's resolution of this issue.

E. Giles's Contention That the Court Misapplied Controlling Precedent When Determining That the Trial Court's Reliance on the Presentence Investigation Report Did Not Violate Petitioner's Right to Due Process of Law40

The court has examined Giles's arguments and finds that he is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment. There are no manifest errors of law or fact in the court's resolution of this issue.

F. Giles's Contention That the Court Failed to Recognize and Missapplied Controlling Precedent When Determining That the Alabama Supreme Court's Decision in Ex parte Hays Did Not Violate the Constitution's Ban on Ex Post Facto Laws, Because the Court (1) Failed to Determine That the Rule Announced in Ex parte Hays Was Foreseeable in Light of the Law Expressed at the Time of Giles's Alleged Criminal Conduct, and, (2) Failed to Recognize That "Procedural" Changes to the Law Can Increase Punishment41

Giles devotes 103 of the 162 pages of his initial motion to alter or amend the judgment to these arguments.42 He also filed a "Notice of Supplemental Authorities," citing two Supreme Court decisions that were handed down after judgment was entered in this case.43 Despite the length of those arguments, and even after reviewing the supplemental authorities identified by Giles, the court concludes that Giles is attempting to relitigate old matters or to present arguments or evidence that could have been raised prior to judgment.44 There are no manifest errors of law or fact in the court's resolution of this issue.

III. DISCUSSION OF ISSUES RAISED IN GILES'S SECOND MOTION TO ALTER OR AMEND THE JUDGMENT

Giles's second motion to alter or amend the judgment alleges that the court made a factual error in one sentence of the Memorandum Opinion.45 Respondent agrees and points out that a companion sentence also contains a factual error.46 Accordingly, the following sentences on pages 323-324 of the Memorandum Opinion are STRICKEN: "A new trial occurred in 1982, resulting in conviction and jury recommendation of life without parole. The trial court's override of that recommendation and imposition of a death sentence was reversed on appeal and remanded for a new sentencing trial before a new jury."47 In place thereof, the Memorandum Opinion is AMENDED to reflect the accurate procedural history, which is: "A new trial occurred in 1982, resulting in a conviction for capital murder and a sentence of death by electrocution. The second conviction was affirmed, but the Alabama Supreme Court set aside Giles's sentence of death and ordered a new sentencing hearing."

IV. CONCLUSION AND ORDERS

After careful review of the arguments, the record, and this court's Memorandum Opinion Denying Habeas Relief, Giles's first motion to alter or amend the judgment is due to be, and it hereby is, DENIED. Giles's second motion to alter or amend the judgment is GRANTED, and the factual errors contained in the Opinion are AMENDED as expressly set out above.

DONE and ORDERED.