United States District Court, D. South Carolina, Florence Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
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.
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. (Dkt. No. 16.)
habeas petition raised five grounds for relief. 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. (Dkt. No. 166.)
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.
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
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
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.