Roane v. GonzalesRoane v. Gonzales
RICHARD W. ROBERTS, District Judge.
BACKGROUND
Paul was convicted of murder on federal land and sentenced to death in 1997. (Pаul‘s Mem. in Support of Mot. to Interv. (“Mot. to Interv.“) at 2.) Paul‘s counsel appealed his conviction and death sentence; petitioned for a writ of certiorari in 2001; filed a
This action was filed in December of 2005. Several plaintiffs successfully moved to intervene in this action between 2006 and 2007. Roane v. Gonzales, 269 F.R.D. 1, 2-3 (D.D.C.2010). With the assistance of three attorneys, two of whom continue to represent him now, Paul movеd to intervene only in October of 2009. (See id. at 3; Mot. to Interv. at 11; Paul‘s Mot. to Reconsider (“Mot. to Recons.“) at 1, 15.) His motion was denied, Roane, 269 F.R.D. 1, and he seeks reconsideration.
Paul now claims that he has been unable to assert his right to challenge his method of execution due to a long-standing incapacitating mеntal disability. (Mot. to Recons. at 7, 12.) To support the claim, Paul cites concerns expressed in 1997 by a psychologist, Dr. H. Anthony Semone, about Paul‘s competency to stand trial; a 2006 report by a psychiatrist, Dr. Seymour Halleck, opining that since Paul‘s attemрt in November 2003 to hang himself, “his mental condition has deteriorated to such an extent that he is unable to assist his attorneys in proceedings relevant to his appeal” (Defs.’ Mot. to Recons., Ex. 1 at 9, 19; id., Ex. 3 at 3); and a 2004 affidavit by one of Paul‘s appellate attorneys stating that he and Paul had had “only one rational conversation about the merits of his case” (id., Ex. 5 at 1). Paul raised this claim in neither his motion to intervene nor his reply to the government‘s opposition to his motion to intervene.
Although the defendants filed notice in December of 2010 of their intent to set an executiоn date for Paul no sooner than April 22, 2011 (Defs.’ Notice at 4-5), the defendants have been reconsidering their lethal injection protocol since then since they lack one of the chemicals used in the protocol (Joint Mot. [Docket # 286] at 1; Defs.’ Stаtus Rpt. [Docket # 292] at 1).
DISCUSSION
A motion to reconsider a final order is generally treated as a Rule 59(e) motion if it is filed within the filing time limit set forth in that rule—as Paul‘s was1—and as a Rule 60(b) motion if it is filed thereafter. Lightfoot v. D.C., 355 F.Supp.2d 414, 420-21 (D.D.C.2005). As a general matter, Rule 59(e) motions to reconsider “are disfavored.” Id. at 421. Reconsideration may be warrantеd if the movant establishes “an intervening change of controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.... Rule 59(e) motions are not granted if the court suspects the losing party is using the motion as an instrumentality for ... asserting new arguments that could have been ... advanced earlier.” Id. (internal quotation marks and citations omitted); see also Latin Am. Soc. and Econ. Dev. v. Adm‘r for of Fed. Highway Admin., Civil Action No. 09-897(EGS), 2010 WL 199823, at *1 (D.D.C. Jan. 11, 2010). The term “manifest injustice” eludes precise definition. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996); see also Piper v. U.S. DOJ, 312 F.Supp.2d 17, 22 (D.D.C.2004) (“[T]here is even less case law on the books giving meaning to ‘manifest injustice’ than to ‘clear error.’ “). The D.C. Circuit has noted that “[m]anifest injustice does not exist where ... a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.” Davis v. D.C., 413 Fed.Appx. 308, 311 (D.C.Cir.2011) (in
Paul cites no intervening change in controlling law. Neither doеs he cite newly available evidence. The evidence concerning his alleged mental incompetency was, according to his own counsel, readily available eight years ago. (See Mot. to Recons. at 15 (asserting that Paul‘s “period of ... mentаl disability ... began at least as early as December 2003.“).) The Halleck declaration alone dates back to 2004. Paul‘s submissions duplicate exactly or in substance portions of the information fully assessed by Paul‘s trial court and the Eighth Circuit when both made findings regarding his competence.2 Though this evidence “is newly raised, it is not ... ‘new’ evidence [because] it was previously available.” Olson v. Clinton, 630 F.Supp.2d 61, 63 (D.D.C.2009) (internal quotation marks and citations omitted).3
The defendants’ notice of its intention to execute Paul, filed on December 23, 2010, was previously unavailable and arguably is newly discovеred evidence within the meaning of Firestone. 76 F.3d at 1208. (See also Paul‘s Supplemental Mot. to Recons. Order Denying Paul Leave to Intervene at 2-3.) However, the notice would not necessarily have changed the decision denying intervention. See Barnard v. Dep‘t of Homeland Sec., 598 F.Supp.2d 1, 26 (D.D.C.2009) (declining to consider separately thе four elements allowing a party to obtain relief from judgment based on newly discovered evidence where the evidence would not have changed the initial decision). The opinion denying intervention here stated that “[i]n ruling on a motion to intervene, thе Court must first determine whether the application to intervene is timely.” Roane, 269 F.R.D. at 4 (internal quotation marks and citation omitted). The opinion found that “Paul‘s failure to file timely his own method of execution challenge[,]” rather than the denial of his motion to intervene, impаired Paul‘s interest in the Roane litigation. Id. Ultimately, Paul failed to find support in three of the four factors courts consider when granting intervention. Id. at 4. The defendants’ decision to schedule an execution date may have expedited the court‘s decision4 but “would not have changed [its] outcome.” Barnard, 598 F.Supp.2d at 27. Accordingly, the notiсe does not provide a ground for reconsidering the decision denying intervention.
Nor has Paul cited authority in this circuit that would establish that denying intervention as untimely was clear error. In this circuit, mental incompetence tolls a statute of limitations if a party‘s disability rendered him “unable to manage [his] business affairs ... or to comprehend [his] legal rights or liabilities.” Smith-Haynie v. D.C., 155 F.3d 575, 580 (D.C.Cir.1998). “Equitable tolling is only appropriate on non compos mentis5
Paul‘s efforts fall short. The latest psychiatric evaluation Paul offers of his competency was forty months old by the time he filed his untimely motion to intervene in 2009. Dеnying a movant‘s untimely intervention motion that did not establish mental incompetency at the time the motion was filed reflects no error. See Collins v. Scurr, 230 F.3d 1362 (Table) (8th Cir.2000) (affirming the dismissal of a petitioner‘s untimely habeas petition for failure to establish his mental incompetency at or around the time the petition was filed). Moreover, Paul has not yet overcome the judicial findings at the trial and appellate levels as recently as one year before he moved to intervene that he was not mentally incompetent. Nor has he disputed that multiple counsel have actively pursued his legal rights in multiple fora after his conviction. See Reupert v. Workman, 45 Fed.Appx. 852, 854 (10th Cir.2002) (declining to toll a counseled defendant‘s deadline for filing habeas petition where he “pursu[ed] legal remedies during the ... period” of alleged mental incompetence); Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.1987) (assuming mental illness may toll an employment discrimination case, “it cannot do so where a plaintiff has presented no strong reason why, despite the assistance of counsel, he was unable to bring suit“); Van Allen v. United States, 236 Fed.Appx. 612, 614 (Fed.Cir.2007) (denying equitable tolling for mentаl incompetence where counseled veteran “demonstrated diligence and competence in numerous submissions“);6 but see Riva v. Ficco, 615 F.3d 35, 43 (1st Cir.2010) (characterizing this reasoning as flawed). It bears noting that this Roane litigation presents the legal question as to whether lethal injection violates the federal Constitution and the Administrative Procedure Act. Even assuming that Paul is mentally incompetent, and that he is unable to assist his attorneys meaningfully, it is not clear that his participation would materially affect their representation in this litigation. Paul has failed to make out the difficult showing that would justify equitable tolling under Smith-Haynie. 155 F.3d at 580.
Finally, Paul has failed to show that denying intervention would work a manifest injustice. “The standard of proving manifest injustice is ... high[,]” In re Motion of Burlodge Ltd., Misc. Action No. 08-525 (CKK/JMF), 2009 WL 2868756, at *7 (D.D.C. Sept. 3, 2009) (internal quotation marks and citation omitted), and is not
CONCLUSION AND ORDER
Paul has not identified any intervening change in controlling law, proffered new evidence, or shown a need to correct clear errоr or prevent manifest injustice. Accordingly, it is hereby
ORDERED that Paul‘s motion [261] for reconsideration be, and hereby is, DENIED. It is further
ORDERED that the government‘s motion [276-1] to strike Paul‘s supplement be, and hereby is, DENIED as moot.