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Terry v. Stirling

United States District Court, D. South Carolina, Florence Division

December 10, 2019

Gary Dubose Terry, Petitioner,
v.
Bryan P. Stirling, Commissioner, South, Carolina Department of Corrections, and Willie D. Davis, Warden, Kirkland Reception and Evaluation Center, Respondents.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on the Petitioner's Motion to Alter or Amend the Judgment (Dkt. No. 164). For the reasons set forth below, the motion is denied.

         I. Background

         In July 1995, the Lexington County Grand Jury indicted Petitioner Gary Dubose for the murder of Urai Jackson and for first degree burglary, first degree criminal sexual conduct, and malicious injury to a telephone system. On September 18, 1997, Petitioner was found guilty on all counts, and three days later the jury found the existence of two statutory aggravating factors and recommended that Terry be sentenced to death, and the trial judge thereafter sentenced Petitioner to death. After his state court direct appeal and post-conviction relief were denied, Petitioner timely filed the present habeas petition on June 29, 2012.[1] (Dkt. No. 16.)

         Petitioner's habeas petition raised five grounds for relief.[2] On September 26, 2019, this Court adopted the R & R of the Magistrate Judge and granted Respondent's motion for summary judgment, denying Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and denying Petitioner a certificate of appealability. (Dkt. No. 162.) Petitioner now moves to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), focusing solely on the first four grounds raised in his habeas petition. (Dkt. No. 164.) Respondent filed a response in opposition to Petitioner's motion.[3] (Dkt. No. 166.)

         II. Legal Standard

         Federal Rule of Civil Procedure 59 allows a party to move to alter or amend a judgment within twenty-eight days. Fed.R.Civ.P. 59(e). The Court may grant a motion for reconsideration only in limited circumstances: "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Pac. Ins. Co. v. Am. Nat'1 Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). A Rule 59 motion tests whether the Court's initial Order was "factually supported and legally justified." Hutchinson v. Staton, 994 F.2d 1076, 1081-82 (4th Cir. 1993). Therefore, the Court may decline to reconsider a prior holding that "applied the correct legal standards" and made "factual findings [ ] supported by substantial evidence." Harwley v. Comm V of Soc. Sec. Admin., 714 Fed.Appx. 311, 312 (Mem) (4th Cir. 2018). As a result, Rule 59(e) provides an "extraordinary remedy which should be used sparingly." Pac. Ins. Co., 148 F.3d at 403.

         III. Discussion

         A. Ground One

         In Ground One, Petitioner argues that his trial counsel was ineffective for failing to concede guilt given as the "overwhelming evidence of guilty rendered [defense counsel's] whole approach to the case disingenuous." (Dkt. No. 164 at 1.) Petitioner has not identified any change of law or any new evidence, and instead seems to argue that the Court's ruling was incorrect, thus constituting clear error or a manifest injustice. To begin with, this is an argument that was already substantially raised and addressed by the Court on summary judgment, and it is well settled that "Rule 59 motions 'may not be used to make arguments that could have been made before the judgment was entered[]'... [n]or are they opportunities to rehash issues already ruled upon because a litigant is displeased with the result. Graham v. Sears, Roebuck & Co., No. CIVA 4:07CV00632RBH, 2010 WL 1727871, at *1 (D.S.C. Apr. 27, 2010) (citations omitted). Therefore, for this reason alone, the motion to alter or amend as to ground one is denied.

         Further, as the Court previously held, this Ground asks the Court to review the state courts' decision in Petitioner's post-conviction relief proceedings, and a reasonable reading of the state court's decision indicates that the court evaluated the State's guilt-phase evidence and determined there was no "reasonable probability" that the failure to concede guilt changed the outcome. Strickland, 466 U.S. at 694. The Court therefore cannot find an unreasonable application of law or fact and cannot grant habeas relief under Ground One. See Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) ("Mindful of the deference owed under AEDPA, we will not discern an unreasonable application of federal law unless 'the state court's decision lies well outside the boundaries of permissible differences of opinion.'"). The motion to alter or amend the order on ground one is therefore denied.

         B. Ground Two

         In Ground Two, as above, Petitioner does not identify any change of law or new evidence, and instead solely reargues issues already addressed by the Court. (Dkt. No. 164 at 3.) Namely, Petitioner alleges that one of his trial attorneys, Duffy Stone, was operating under an actual conflict of interest as Stone also served as a part-time prosecutor in another judicial circuit and as a counsel for the Insurance Reserve Fund ("IRF"). (Id. at 3 - 4.) Petitioner largely restates his argument from his opposition to summary judgment, and does not address any relevant facts here, instead restating the legal standard already applied by the Court. (Id. at 3 - 7.) Regardless, as the Court previously held, Petitioner has failed to create any dispute of fact that there was an adverse effect from any alleged conflict, as required to make out a claim for ineffective assistance of counsel based on a conflict of interest. Therefore, Petitioner's motion to alter or amend the order on ground two is denied.

         C. ...


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