United States of America v. Mercer

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DONOVAN GENE MERCER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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) 	Case No. CR-14-00280-PRW
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ORDER
Before the Court is Plaintiff Mercer’s second Motion for Reconsideration of a
Judgment (Dkt. 216), seeking reconsideration of the judgment on his original habeas
petition pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.
The protracted procedural history of this case was set out in detail in this Court’s
previous Order (Dkt. 215), which denied Mercer’s second Rule 60(b)(6) motion (Dkt. 213).
That Order—on Mercer’s second Rule 60(b)(6) motion—sought relief from the ruling on
Mercer’s original habeas petition and to reopen the proceedings of the original habeas
petition. After that motion was denied, Mercer filed this second Rule 59(e) motion for
reconsideration.
Rule 59(e) “gives a district court the chance to rectify its own mistakes in the period
immediately following its decision. . . . [i]n keeping with that corrective function, federal
courts generally have used Rule 59(e) only to reconsider matters properly encompassed in
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a decision on the merits.”1 A Rule 59(e) motion “should be granted only to correct manifest
errors of law or to present newly discovered evidence.”2 Relief under Rule 59(e) also is
appropriate when “the court has misapprehended the facts, a party’s position, or the
controlling law.”3
Mercer advances three arguments in the current motion: (1) that the Court
incorrectly found that he had not requested counsel before Judge Miles-LaGrange during
his original habeas proceedings, and also that the Court legally erred in concluding that he
had no right to counsel at the point of his claimed request; (2) that the Court legally erred
in concluding that any alleged procedural error resulting in improper denial of counsel did
not, by itself, prevent a merits determination of Mercer’s claims, as is required for a Rule
60(b)(6) motion; and (3) that the Court legally erred in concluding that Mercer had not
established good cause to reopen his habeas proceedings. The United States did not file a
response to this motion. The Court now addresses and rejects each of Mercer’s arguments
in turn.
Request for Counsel
To begin, Mercer argues that the Court erred in its ruling on his request for counsel
during his original habeas proceedings. This supposed error must be reviewed in light of
relevant legal inquiry for Mercer’s previous motion, which was brought pursuant to Rule
1 Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (alterations and internal quotation marks
omitted).
2 Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (internal quotation marks
omitted).
3 Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
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60(b)(6).4 Mercer’s argument has two parts. Neither provides a basis to disturb the previous
order under Rule 59(e).
First, Mercer challenges the Court’s factual conclusion that “Mercer never requested
appointment of counsel in his original habeas motion.”5 At the beginning of this habeas
process, Mercer filed both a Motion to Vacate Under 28 U.S.C. § 2255 (Dkt. 147) and a
separate Memorandum in Support (Dkt. 148). In both his previous and current motions,
Mercer claims to have requested appointment of counsel on page 1 of the memorandum in
support. However, a careful review of page 1 of the brief—and the remainder of the brief—
reveals no request for counsel. To be sure, on the title page of the brief, Mercer wrote “Brief
on Movant’s Motion Under 28 U.S.C. § 2255” and “Request Appointment of Effective
Counsel” and “Request Evidentiary Hearing.” Yet nowhere in the brief’s arguments,
conclusions, or requests did Mercer state that he sought the appointment of counsel to assist
him. Since one label amongst a cluster of other labels on the title page of a brief cannot
change a complete lack of substantive arguments or requests within the brief—particularly
here, where Mercer had no general right to counsel in a habeas proceeding and needed to
present detailed arguments sufficient to overcome this default prohibition—there is no
4 A “true” or proper Rule 60(b) motion either “(1) challenges a procedural ruling of the
habeas court which precluded a merits determination of the habeas application; or (2)
challenges a defect in the integrity of the federal habeas proceeding, provided that such a
challenge does not itself lead inextricably to a merits-based attack on the disposition of a
prior habeas motion.” West v. Champion, 363 F. App’x 660, 662 (10th Cir. 2010) (quoting
Spitznas v. Boone, 464 F.3d 1213, 1215–16 (10th Cir. 2006)); see also Gonzalez v. Crosby,
545 U.S. 524, 532 n.4 (2005). The Court cites unpublished decisions of the Tenth Circuit
for their persuasive value, consistent with Tenth Cir. R. 32.1 and Fed. R. App. P. 32.1.
5 Order (Dkt. 215), at 7.
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error in the conclusion that Mercer did not formally request the appointment of counsel in
any way sufficient to make it error for Judge Miles-LaGrange to not address such a request.
However, even if the Court did err in this factual determination and even if Mercer did
properly request counsel in his memorandum in support of habeas, that fact would not
change the overall conclusion that Judge Miles-LaGrange did not legally err in denying
such a request, because Mercer had no right to counsel at that stage of the proceeding.
Mercer continues to contest this conclusion as the second piece of his argument on
the request for counsel. Mercer previously argued that 18 U.S.C. § 3006(A) guaranteed
him a Sixth Amendment right to counsel “at every stage of the proceedings from his initial
appearance before the United States Magistrate or the court through appeal, including
ancillary matters appropriate to the proceedings.”6 He argues that by ordering the United
States to respond to his original habeas petition, Judge Miles-LaGrange created an
“ancillary matter” such that his right to counsel attached immediately.7
However, this argument was legally erroneous to begin with and Mercer has
supplied no additional authority to make it any more plausible. It is well-settled that
“[t]here is no constitutional right to counsel beyond the direct appeal of a criminal
6 Second Rule 60(b)(6) Motion (Dkt. 214), at 7.
7 Mercer also argues that “if Judge Miles-LaGrange had not ordered the United States to
answer the habeas petition then the United States would not have evoked the procedural
default, and Mercer would not have been burdened with overcoming it.” See Second Rule
59(e) Motion (Dkt. 216), at 4. Yet this argument incorrectly assumes that Judge Miles-
LaGrange would have been free to ignore the procedural bar if the United States had not
raised it. This assumption is manifestly incorrect—regardless of whether or not the United
States raised the issue of the procedural bar, Judge Miles-LaGrange was bound to make
the legally correct ruling and apply the procedural bar.
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conviction”8 and that even when a habeas petitioner specifically requests counsel, “the
district court has broad discretion” to grant or deny that request.9 Only when a district court
determines an evidentiary hearing is necessary to resolve the habeas claims must the habeas
petitioner “be afforded counsel.”10 18 U.S.C. § 3006(A)’s discussion of “ancillary matters”
does not change this baseline legal principle. The Tenth Circuit clearly stated in United
States v. Howell11 that “[habeas] petitions do not implicate the guarantee in federal law of
‘represent[ation] 	at 	every 	stage 	. . . 	including 	ancillary 	matters 	appropriate 	to 	the
proceedings.’”12
As a core matter of law, Mercer did not have a right to counsel during his habeas
proceedings unless and until the reviewing judge determined that an evidentiary hearing
was necessary. Since Judge Miles-LaGrange determined that an evidentiary hearing was
not necessary to resolve Mercer’s habeas petition, Mercer had no right to counsel and thus
there was no error in Judge Miles-LaGrange exercising her “broad discretion” to deny his
supposed request for counsel (even had he made such a request properly). No habeas
proceeding “ancillary matter” short of an evidentiary hearing changes this principle of law,
8 Nicholls v. Long, 2022 WL 211617, at *10 (10th Cir. 2022) (quoting Coronado v. Ward,
517 F.3d 1212, 1218 (10th Cir. 2008)).
9 See id. (finding no error in the denial of habeas petitioner’s request for counsel) (quoting
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
10 Id.
11 573 F. App’x 795 (10th Cir. 2014).
12 Id. at 801 (quoting 18 U.S.C. § 3006(A)). The Court cites unpublished decisions of the
Tenth Circuit for their persuasive value, consistent with Tenth Cir. R. 32.1 and Fed. R.
App. P. 32.1.
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and neither 18 U.S.C. § 3006(A) nor 28 U.S.C. § 2255(b) alters the foundation rule that a
habeas petitioner does not have a right to counsel until an evidentiary hearing has been
ordered. Mercer had no right to counsel, and Judge Miles-LaGrange’s order to the United
States to respond to the habeas petition did not give Mercer a right to counsel to assist with
his briefing.
Accordingly, even if Mercer correctly requested the assistance of counsel in his
memorandum in support of habeas, there was no legal error in Judge Miles-LaGrange’s
denial of such a request.
Prevention of Merits Determination
Next, Mercer argues that the Court erred in concluding that the “supposed denied
request for counsel did not ultimately prevent a merits determination.”13 His argument is
simple: “Judge Miles LaGrange did not make a merits determination on [Issues One, Three,
and Four] in the habeas petition. . . . No where in Judge Miles-LaGranges July 16, 2018
order does she discus [sic] the merits or the constitutionality of Mercer’s habeas claims.”14
However, the occurrence or nonoccurrence of a merits determination on Mercer’s
claims must not be considered in a vacuum. The Court’s previous order resolved a Rule
60(b)(6) motion, where the relevant inquiry was whether “a procedural ruling of the habeas
court which precluded a merits determination of the habeas application.”15 Mercer’s
argument is that an erroneous procedural ruling by Judge Miles-LaGrange (the supposed
13 Order (Dkt. 215), at 8.
14 Second Rule 59(e) Motion (Dkt. 216), at 5.
15 West, 363 F. App’x at 662.
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improper denial of his request for counsel) prevented him from receiving a merits
determination on Issues One, Three, and Four of his habeas petition. Judge Miles-
LaGrange declined to conduct a merits inquiry because she correctly concluded that these
three claims were all procedurally barred—either waived on appeal or raised and decided
on appeal. Even had Judge Miles-LaGrange ordered counsel to help Mercer with his
briefing, this procedural bar still applied and Mercer’s habeas petition would have still been
decided without a merits determination. Thus, Judge Miles-LaGrange’s procedural ruling
on the supposed request for counsel was not the reason Mercer did not receive merits
determination of his claims, as would have been required for relief in Mercer’s prior Rule
60(b)(6) motion.
Accordingly—assuming for the sake of argument that the supposed denial of request
for counsel was improper—that denial did not, by itself, prevent a merits determination of
Mercer’s Issues One, Three, and Four in his original habeas petition. Those claims were
precluded from merits determinations by other, independent procedural bars. So there was
no error in the Court’s prior ruling that any alleged procedural error by Judge Miles-
LaGrange did not preclude the merits determination of Mercer’s claims and thus Mercer
was not entitled to Rule 60(b)(6) relief.
Cause to Excuse Procedural Default
Finally, Mercer argues that the Court clearly erred in its consideration of whether
there was good cause to excuse the procedural default and waiver of his claims. Mercer
appears to present at least three different arguments here: (1) that the Court failed to address
whether good cause to excuse the waiver could have been proved with the assistance of
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counsel, (2) that the Court erred in concluding that “Mercer’s case falls very far outside the
“narrow exception” established by Martinez[v. Ryan] and Trevino[v. Thaler], so the
general rule of Coleman[v. Thompson] applies,” and (3) that the Court erred in concluding
that an issue preserved for appeal could be forfeited at all. The Court addresses and rejects
each argument in turn.
First, as a general rule, issues waived on direct appeal may still be raised in a
subsequent habeas proceeding upon a showing of “cause for his procedural default and
actual prejudice resulting from the alleged errors” or that “a fundamental miscarriage of
justice will occur if his claim is not addressed.”16 Mercer argues that the Court “decided to
ignore [sic]” whether the appointment of counsel to assist his habeas briefing could have
helped him establish good cause to excuse the waiver, and claims that he “required the
guiding hand of counsel—to which he was denied—to show cause for that procedural
default because he did not have the skill or knowledge to do so himself, and appointed
counsel would have known.”17 While no doubt counsel could have assisted Mercer in
matters which he knows little about, the simple assertion that arguments could have been
presented better with counsel’s assistance provides no exception to the general rule that
habeas petitioners do not have a right to the assistance of counsel.
Furthermore, “cause and prejudice” sufficient to overcome the procedural bar
requires a showing that the factual or legal basis for a claim was not reasonably available
16 United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).
17 Second Rule 59(e) Motion (Dkt. 216), at 5, 8.
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to the defendant at the time, that interference by governmental officials made compliance
impracticable, or that counsel was constitutionally ineffective.18 Mercer has identified no
reason why his waived claims were unavailable at the time of appeal, no indication that
government officials made compliance with the appeals requirement impracticable, and
even no clear proof that his appellate counsel was constitutionally ineffective.19 Therefore,
Mercer has demonstrated no reason to conclude that he could have shown good cause to
excuse his procedural default even with the appointment of counsel to assist him with
briefing.
Second, Mercer appears to argue that the Court legally erred in concluding that his
case falls outside of the narrow exception established in Martinez v. Ryan20 and Trevino v.
Thaler,21 which stated that a habeas petition who was convicted in a state court of a state
that required ineffective assistance of trial counsel claims to be brought in a state
postconviction collateral review proceeding (rather than on direct appeal) could establish
good cause to excuse his waiver of issues for failure to present the issue in that state
postconviction collateral review proceeding. The Court correctly concluded that Mercer’s
18 See McCleskey v. Zant, 499 U.S. 467, 494 (1991).
19 See Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th Cir. 2003) (when reviewing claims
of ineffective assistance of appellate counsel due to omission of a preserved argument,
“deferential consideration must be given to any professional judgment involved in its
omission”) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)); see also Cargle v. Mullin,
317 F.3d 1196, 1202 (10th Cir. 2003) (“[A]ppellate counsel who files a merits brief need
not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal.”).
20 566 U.S. 1 (2012).
21 569 U.S. 413 (2013).
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case does not fall within the Martinz-Trevino exception. Mercer’s waived claims were not
ineffective assistance of trial counsel.22 Mercer was not convicted in state court. Mercer
was not subject to a regime that required him to present in claims in a postconviction
collateral review proceeding. Mercer did have the opportunity to present his claims in a
direct appeal. Any single one of these differences removes his case from the scope of the
Martinz-Trevino exception, and he has presented no legal arguments or authorities
indicating why the Court might have been wrong in so concluding.
Third, Mercer claims that “[w]hen trial counsel preserves an issue for review on
appeal it cannot be procedurally barred or forfitted because it has been preserved for review
on appeal.”23 It is not clear how this argument goes to proving good cause to excuse the
waiver and procedural bar. But it is clear that this argument is legally incorrect. An issue
must be preserved at trial in order to be presented on appeal. And it is clearly established
that “[a] defendant who fails to present an issue on direct appeal is barred from raising the
issue in a § 2255 motion.”24 Mercer also cites no authority for his proposition that preserved
errors cannot be forfeited. The Court finds no legal significance to this argument and that
22 Mercer claims that “ineffective assistance of trial counsel is nothing more than the denial
of ones Sixth Amendment right to effective counsel,” and that he qualifies for the exception
because he seeks to “rais[e] a claim of ineffective assistance of post conviction counsel.”
Second Rule 59(e) Motion (Dkt. 216), at 8. But the Court will not squint at generalities in
an attempt to see two very different types of claims as synonymous, particularly where the
Supreme Court has clearly spoken and defined what cases and claims satisfy the Martinz-
Trevino exception.
23 Second Rule 59(e) Motion (Dkt. 216), at 7.
24 Allen, 16 F.3d at 378.
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this argument presents no reason for disturbing the Court’s ruling on the second Rule
60(b)(6) motion.
Conclusion
In sum, Mercer failed to identify any manifest errors of law and has not presented
any new evidence. He has failed to demonstrate that the Court “misapprehended the facts,
a party’s position, or the controlling law” in relation to his second Rule 60(b)(6) motion.
Mercer has not shown that the Court’s Order denying that motion was incorrect, and so has
not shown entitlement to reconsideration of that Order or reconsideration of his original
habeas petition. Accordingly, his Second Rule 59(e) Motion (Dkt. 216) is DENIED.
IT IS SO ORDERED this 6th day of July 2022.
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