United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
Benson, United States District Judge.
to Rule 59(e) of the Federal Rules of Civil Procedure,
Petitioner Ronald Watson Lafferty requests that this court
alter or amend the judgment entered on October 5, 2017 (ECF
No. 411), related to the court's decision issued on
October 4, 2017 (ECF No. 410). Lafferty asserts that the
court committed clear error in its denial of claim ten
(partial) of his Second Amended Petition for Writ of Habeas
Corpus. The State notes in its opposition to the
motion, that Lafferty bases his request on a proffer of juror
questionnaires that were not part of the state court record
when the Utah Supreme Court rejected the claim. Lafferty
failed to disclose in his motion that this court has ruled
that the extra-record proffer is both inadmissible in this
proceeding and unable to show juror bias in any event. ECF
No. 413 at 2. Rather than responding to the State's
argument, Lafferty filed a motion to strike Respondent's
opposition memorandum, claiming that neither Rule 59(e)
itself nor the local rules provide for a response
(opposition) or reply to a Rule 59(e) motion. ECF No. 414.
The court disagrees, and hereby denies both the Motion to
Strike and the Motion to Alter or Amend.
Standard for Granting a Motion to Alter or Amend
Rule 59(e), a court may alter or amend a judgment it has
entered if there is “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and
(3) the need to correct clear error or prevent manifest
injustice.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000) (citing
Brumark Corp. v. Samson Resources Corp., 57 F.3d
941, 948 (10th Cir. 1995)). A Rule 59(e) motion is
“appropriate where the court has misapprehended the
facts, a party's position, or the controlling law.”
Servants of the Paraclete, at 1012. “It is not
appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Id. (citing Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir.
The court order was not clearly erroneous in concluding that
Lafferty failed to establish that he was tried by a biased
raises only Rule 59(e)'s third ground, arguing that this
court committed “clear error” when rejecting his
claim that appellate counsel was ineffective for failing to
appeal the denial of the motion to change venue. In rejecting
the claim, the court first noted the Utah Supreme Court's
holding that Lafferty had pointed to “'no evidence
of a tainted jury, '” which was a prerequisite to
establish both elements of his appellate-attorney
ineffectiveness claim. ECF No. 410 at 23. The Utah Supreme
Court held the following: “Without evidence of
prejudice, Lafferty cannot show that counsel was deficient
for overlooking an obvious argument that probably would have
resulted in reversal on appeal.” Lafferty v.
State, 175 P.3d 530, 540 (2008).
argues that there were a large number of prospective jurors
who had already determined that he was guilty based upon
their exposure to press coverage (ECF No. 39 at 243-49), and
that jurors who were actually biased served on his jury. He
relies principally on juror questionnaires from Jurors 82,
105, and 213 to argue that biased jurors sat.
juror questionnaires were an extra-record proffer that
Lafferty had not presented to the state supreme court. In his
current motion to alter or amend, he fails to disclose that
this court has already denied his motion to expand the record
to include this proffer, holding that it is inadmissible in
this proceeding. ECF No. 399 at 3-4, 7.
fails to disclose that this court addressed the substance of
the questionnaires when rejecting his Martinez
motion and determined that they refute his claims of bias on
their face. ECF No. 400 at 11 (ruling that questionnaires
from Jurors 82 and 105 “on their face refute Mr.
Lafferty's bias claim” and that “Juror
213's questionnaire would have dispelled any concerns
counsel had about her religious beliefs”). Even if the
juror questionnaires were admissible in this proceeding,
which the court has held they are not, the court has
thoroughly addressed the substance of the questionnaires and
why they do not indicate that Lafferty's jury was biased.
See ECF No. 400 at 8-15 for a detailed discussion.
The court's ruling did not incorrectly interpret clearly
established federal law.
opinion, the Utah Supreme Court held the following:
[O]n his first appeal, Lafferty's counsel, the same
counsel who represented him on his second direct appeal, did
challenge the denial of his motion to change venue. [citation
omitted] This court rejected that challenge because the
totality of the circumstances provided no basis for
concluding that the trial court should distrust the
jurors' assurances of impartiality. [citation omitted]
And Lafferty provides no ...