United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER DENYING MOTION
KINKEADE, UNITED STATES DISTRICT JUDGE
Abel Revill Ochoa has filed a “Motion to Amend Judgment
Pursuant to Fed. R. Civ. Proc. 59(e) and Memorandum of Law in
Support” (Rule 59 Motion, doc. 61). Respondent has
filed a response in opposition to the motion (Response, doc.
62). The motion is denied because the Court properly
addressed the arguments Ochoa presented in his pleadings and
his new arguments do not warrant relief from the judgment.
asserts that this Court erred in denying his unexhausted
claims of ineffective assistance of trial counsel without
affording a hearing on cause and prejudice under Martinez
v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v.
Thaler, 133 S.Ct. 1911 (2013). He asserts that
“the requisite preliminary showing of substantiality
can rarely ever be made without an initial evidentiary
hearing.” (Mot. at 3.) In support, Ochoa makes three
arguments. First, Ochoa complains that this Court applied an
overly stringent standard while depriving him of an
evidentiary hearing. (Mot. at 3-6.) Second, Ochoa argues that
courts within this district have granted evidentiary hearings
to demonstrate the underlying substantiality of the claim
under Martinez and Trevino along with its
subsequent entitlement to consideration on the merits. (Mot.
at 6-9.) Finally, Ochoa argues that the Court erred in
determining the substantiality of his claim that trial
counsel was ineffective in failing to investigate and present
mitigating evidence at the punishment phase of trial by
considering the amount of mitigation evidence that trial
counsel presented. (Mot. at 9-35.)
presents three arguments in opposition to the motion. First,
Respondent asserts that, to the extent that Ochoa re-urges
the merits of his claim, his motion is an impermissible
successive habeas petition that this Court lacks jurisdiction
to consider. (Resp. at 6-8.) Second, Respondent argues that
Ochoa fails to present a sufficient ground to authorize
relief under Rule 59, specifically that any manifest
injustice resulted from the lack of an evidentiary hearing.
(Resp. at 8-13.) Finally, Respondent argues that an
evidentiary hearing is barred under 28 U.S.C. §
2254(e)(2). (Resp. at 13-14.)
59(e) of the Federal Rules of Civil Procedure allows a court
“to rectify its own mistakes in the period immediately
following entry of judgment.” White v. New
Hampshire Dept. of Employment Sec., 455 U.S. 445,
450 (1982). Although district courts have discretion as to
whether or not to reopen a case under Rule 59(e),
“[r]econsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.”
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004) (citing Clancy v. Employers Health Ins.
Co., 101 F.Supp.2d 463, 465 (E.D. La. 2000)).
“A motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error
of law or fact or must present newly discovered evidence'
and ‘cannot be used to raise arguments which could, and
should, have been made before the judgment issued.'
” Rosenzweig [v. Azurix Corp., 332 F.3d 854,
863-64 (quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir.1990)]. Relief under Rule 59(e) is also
appropriate when there has been an intervening change in the
controlling law. See In re Benjamin Moore & Co.,
318 F.3d 626, 629 (5th Cir.2002).
Schiller v. Physicians Resource Group Inc., 342 F.3d
563, 567-68 (5th Cir. 2003) (footnote omitted).
determining whether to grant Rule 59 relief, the Fifth
Circuit has set forth a balancing test between “two
important judicial imperatives relating to such a motion: 1)
the need to bring litigation to an end; and 2) the need to
render just decisions on the basis of all the facts. The task
for the district court is to strike the proper balance
between these competing interests.” Templet,
367 F.3d at 479 (citations omitted).
district court, however, has no jurisdiction to consider a
successive habeas petition, even if it is couched as a motion
filed under Rule 59, unless the petitioner first obtains the
required authorization from the court of appeals. A motion to
reopen under Rule 59 is considered a successive habeas
petition under 28 U.S.C. § 2244(b) when it raises a
claim that was or could have been raised in the petition.
See Hardemon v. Quarterman, 516 F.3d 272, 275 (5th
determining whether a motion to reopen under Rule 59(e) is
actually an impermissible successive habeas petition, this
Circuit applies the same framework of Gonzalez v.
Crosby, 545 U.S. 524 (2005), that is used to determine
whether a motion to reopen under Rule 60(b) of the Federal
Rules of Civil Procedure is a second or successive habeas
petition, and thus subject to AEDPA's additional
jurisdictional requirements. See Williams v. Thaler,
602 F.3d 291, 304 (5th Cir. 2010).
In most cases, determining whether a Rule 60(b) motion
advances one or more “claims” will be relatively
simple. A motion that seeks to add a new ground for relief
... will of course qualify. A motion can also be said to
bring a “claim” if it attacks the federal
court's previous resolution of a claim on the
merits, since alleging that the court erred in denying
habeas relief on the merits is effectively indistinguishable
from alleging that the movant is, under the substantive
provisions of the statutes, entitled to habeas relief. That
is not the case, however, when a Rule 60(b) motion ...