1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 EDWARD THOMAS WILSON, Case No. 2:98-cv-01174-GMN-BNW
4 Petitioner, ORDER DENYING MOTION TO AMEND JUDGMENT 5 v. AND GRANTING MOTIONS FOR EXTENSIONS OF TIME 6 JEREMY BEAN, [ECF Nos. 228, 246, 248] 7 Respondent.
9 In this capital habeas corpus action, Petitioner Edward Thomas Wilson was sentenced in 10 Nevada state court to death after he pleaded guilty to first-degree murder, robbery with the use of 11 a deadly weapon, and kidnapping with the use of a deadly weapon. (ECF No. 147-4.) On April 12 11, 2025, the Court denied Wilson’s Third-Amended Petition for Writ of Habeas Corpus under 28 13 U.S.C. § 2254 (“Third-Amended Petition”). (ECF No. 226 (“Merits Order”).) Judgment was 14 entered. (ECF No. 227.) This action is now before the Court on Wilson’s Motion to Amend the 15 Judgment.1 (ECF No. 228 (“Motion”).) Respondents opposed the Motion, and Wilson replied. 16 (ECF Nos. 234, 247.) For the reasons discussed below, the Court denies the Motion. 17 A. LEGAL STANDARD 18 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or amend 19 a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 20 59(e). As the Ninth Circuit has recognized, “a Rule 59(e) motion is an extraordinary remedy, to 21 be used sparingly in the interests of finality and conservation of judicial resources.” Wood v. Ryan, 22
1 This action is also before the Court on Wilson’s ninth and tenth requests for an extension of time 23 to file his reply to the Motion to Amend. (ECF Nos. 246, 248.) The Court finds that good cause exists to grant these requests, nunc pro tunc. 1 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation marks omitted). Absent highly unusual 2 circumstances, reconsideration under Rule 59(e) is “available only when (1) the court committed 3 manifest errors of law or fact, (2) the court is presented with newly discovered or previously 4 unavailable evidence, (3) the decision was manifestly unjust, or (4) there is an intervening change
5 in the controlling law.” Rishor v. Ferguson, 822 F.3d 482, 491–92 (9th Cir. 2016). 6 B. RELEVANT BACKGROUND INFORMATION 7 At the outset of its Merits Order, the Court found that it could not “consider much of the 8 proffered evidence Wilson relie[d] upon to support his habeas claims” because (1) “a federal court 9 may not consider new evidence on the merits of a claim unless the petitioner satisfies the stringent 10 requirements of 28 U.S.C. §2254(e)(2),” and (2) “a federal court cannot consider evidence that 11 was not before the state court when considering any question adjudicated on the merits in state 12 court.” (ECF No. 226 at 7.) Later, in denying ground 9, in which Wilson alleged that his trial 13 counsel was ineffective in his presentation of mitigation evidence at the penalty phase, the Court 14 found that Wilson’s trial counsel was deficient for “fail[ing] to conduct any meaningful
15 investigation into Wilson’s family or personal history” but found that Wilson failed to establish 16 prejudice. (Id. at 38–40.) The Court explained that “[t]he problem for Wilson is that he did not 17 attempt to present any of [the evidence supporting this ground] to the state court until he filed his 18 procedurally-barred second and subsequent state post-conviction petitions.” (Id. at 39.) As such, 19 the Court concluded that it was “not permitted . . . to consider evidence that Wilson did not give 20 the state court the opportunity to consider when it adjudicated his IAC claim.” (Id. at 40.) 21 C. DISCUSSION 22 Wilson argues that his Judgment should be amended because it was manifestly unjust for 23 the Court to not consider his proffered evidence in ground 9. (ECF No. 228 at 7.) 1 U.S.C. § 2254(e)(2) provides as follows: 2 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the 3 applicant shows that-- (A) the claim relies on-- 4 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 5 previously unavailable; or (ii) a factual predicate that could not have been previously 6 discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by 7 clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the 8 underlying offense.
9 In Shinn v. Ramirez, the Supreme Court of the United States reinforced that when 10 reviewing a federal habeas petition, the federal court may not consider any facts beyond the factual 11 record presented to the state postconviction relief court, unless one of the exceptions of 28 U.S.C. 12 § 2254(e)(2) applies. 596 U.S. 366, 382 (2022). The Ramirez Court also held that, with respect to 13 procedurally defaulted claims not adjudicated on their merits in state court, the federal habeas court 14 may not hold an evidentiary hearing or otherwise consider new evidence, either regarding the 15 question of cause and prejudice relative to a procedural default or regarding the merits of the claim, 16 unless the requirements of 28 U.S.C. § 2254(e)(2) are met. Id. at 382–91. 17 For purposes of determining whether a petitioner must first meet the prerequisites of § 18 2254(e)(2), the term “fail” means “the prisoner must be ‘at fault’ for the undeveloped record in 19 state court.” Williams v. Taylor, 529 U.S. 420, 432, 434 (2000). Because the word “failed” 20 suggests “some omission, fault, or negligence on the part of the person who has failed to do 21 something,” a habeas petitioner has “failed to develop the factual basis of a claim,” within the 22 meaning of § 2254(e), only if “there is lack of diligence, or some greater fault, attributable to the 23 prisoner or the prisoner’s counsel.” Id. at 431–32. “Diligence for purposes of [§ 2254(e)(2)’s] 1 opening clause depends upon whether the prisoner made a reasonable attempt, in light of the 2 information available at the time, to investigate and pursue claims in state court; it does not depend 3 . . . upon whether those efforts could have been successful.” Id. at 435. A prison “is not at fault” 4 for purposes of § 2254(e)(2) “when his diligent efforts to perform an act are thwarted . . . by the
5 conduct of another or by happenstance.” Id. at 432. Contrarily, “a petitioner who ‘knew of the 6 existence of [ ] information’ at the time of his state court proceedings, but did not present it until 7 federal habeas proceedings, ‘failed to develop the factual basis for his claim diligently.’” Rhoades 8 v. Henry, 598 F.3d 511, 517 (9th Cir. 2010).
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 EDWARD THOMAS WILSON, Case No. 2:98-cv-01174-GMN-BNW
4 Petitioner, ORDER DENYING MOTION TO AMEND JUDGMENT 5 v. AND GRANTING MOTIONS FOR EXTENSIONS OF TIME 6 JEREMY BEAN, [ECF Nos. 228, 246, 248] 7 Respondent.
9 In this capital habeas corpus action, Petitioner Edward Thomas Wilson was sentenced in 10 Nevada state court to death after he pleaded guilty to first-degree murder, robbery with the use of 11 a deadly weapon, and kidnapping with the use of a deadly weapon. (ECF No. 147-4.) On April 12 11, 2025, the Court denied Wilson’s Third-Amended Petition for Writ of Habeas Corpus under 28 13 U.S.C. § 2254 (“Third-Amended Petition”). (ECF No. 226 (“Merits Order”).) Judgment was 14 entered. (ECF No. 227.) This action is now before the Court on Wilson’s Motion to Amend the 15 Judgment.1 (ECF No. 228 (“Motion”).) Respondents opposed the Motion, and Wilson replied. 16 (ECF Nos. 234, 247.) For the reasons discussed below, the Court denies the Motion. 17 A. LEGAL STANDARD 18 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or amend 19 a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 20 59(e). As the Ninth Circuit has recognized, “a Rule 59(e) motion is an extraordinary remedy, to 21 be used sparingly in the interests of finality and conservation of judicial resources.” Wood v. Ryan, 22
1 This action is also before the Court on Wilson’s ninth and tenth requests for an extension of time 23 to file his reply to the Motion to Amend. (ECF Nos. 246, 248.) The Court finds that good cause exists to grant these requests, nunc pro tunc. 1 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation marks omitted). Absent highly unusual 2 circumstances, reconsideration under Rule 59(e) is “available only when (1) the court committed 3 manifest errors of law or fact, (2) the court is presented with newly discovered or previously 4 unavailable evidence, (3) the decision was manifestly unjust, or (4) there is an intervening change
5 in the controlling law.” Rishor v. Ferguson, 822 F.3d 482, 491–92 (9th Cir. 2016). 6 B. RELEVANT BACKGROUND INFORMATION 7 At the outset of its Merits Order, the Court found that it could not “consider much of the 8 proffered evidence Wilson relie[d] upon to support his habeas claims” because (1) “a federal court 9 may not consider new evidence on the merits of a claim unless the petitioner satisfies the stringent 10 requirements of 28 U.S.C. §2254(e)(2),” and (2) “a federal court cannot consider evidence that 11 was not before the state court when considering any question adjudicated on the merits in state 12 court.” (ECF No. 226 at 7.) Later, in denying ground 9, in which Wilson alleged that his trial 13 counsel was ineffective in his presentation of mitigation evidence at the penalty phase, the Court 14 found that Wilson’s trial counsel was deficient for “fail[ing] to conduct any meaningful
15 investigation into Wilson’s family or personal history” but found that Wilson failed to establish 16 prejudice. (Id. at 38–40.) The Court explained that “[t]he problem for Wilson is that he did not 17 attempt to present any of [the evidence supporting this ground] to the state court until he filed his 18 procedurally-barred second and subsequent state post-conviction petitions.” (Id. at 39.) As such, 19 the Court concluded that it was “not permitted . . . to consider evidence that Wilson did not give 20 the state court the opportunity to consider when it adjudicated his IAC claim.” (Id. at 40.) 21 C. DISCUSSION 22 Wilson argues that his Judgment should be amended because it was manifestly unjust for 23 the Court to not consider his proffered evidence in ground 9. (ECF No. 228 at 7.) 1 U.S.C. § 2254(e)(2) provides as follows: 2 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the 3 applicant shows that-- (A) the claim relies on-- 4 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 5 previously unavailable; or (ii) a factual predicate that could not have been previously 6 discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by 7 clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the 8 underlying offense.
9 In Shinn v. Ramirez, the Supreme Court of the United States reinforced that when 10 reviewing a federal habeas petition, the federal court may not consider any facts beyond the factual 11 record presented to the state postconviction relief court, unless one of the exceptions of 28 U.S.C. 12 § 2254(e)(2) applies. 596 U.S. 366, 382 (2022). The Ramirez Court also held that, with respect to 13 procedurally defaulted claims not adjudicated on their merits in state court, the federal habeas court 14 may not hold an evidentiary hearing or otherwise consider new evidence, either regarding the 15 question of cause and prejudice relative to a procedural default or regarding the merits of the claim, 16 unless the requirements of 28 U.S.C. § 2254(e)(2) are met. Id. at 382–91. 17 For purposes of determining whether a petitioner must first meet the prerequisites of § 18 2254(e)(2), the term “fail” means “the prisoner must be ‘at fault’ for the undeveloped record in 19 state court.” Williams v. Taylor, 529 U.S. 420, 432, 434 (2000). Because the word “failed” 20 suggests “some omission, fault, or negligence on the part of the person who has failed to do 21 something,” a habeas petitioner has “failed to develop the factual basis of a claim,” within the 22 meaning of § 2254(e), only if “there is lack of diligence, or some greater fault, attributable to the 23 prisoner or the prisoner’s counsel.” Id. at 431–32. “Diligence for purposes of [§ 2254(e)(2)’s] 1 opening clause depends upon whether the prisoner made a reasonable attempt, in light of the 2 information available at the time, to investigate and pursue claims in state court; it does not depend 3 . . . upon whether those efforts could have been successful.” Id. at 435. A prison “is not at fault” 4 for purposes of § 2254(e)(2) “when his diligent efforts to perform an act are thwarted . . . by the
5 conduct of another or by happenstance.” Id. at 432. Contrarily, “a petitioner who ‘knew of the 6 existence of [ ] information’ at the time of his state court proceedings, but did not present it until 7 federal habeas proceedings, ‘failed to develop the factual basis for his claim diligently.’” Rhoades 8 v. Henry, 598 F.3d 511, 517 (9th Cir. 2010). 9 Wilson argues that his second state post-conviction proceedings were fundamentally unfair 10 and a violation of due process because (1) his second post-conviction counsel appeared at the 11 hearing without any evidence to present and “behaved as if he were under the influence,” and (2) 12 the state court denied his request to represent himself at his second post-conviction hearing. (ECF 13 No. 228 at 4–5, 7.) As such, Wilson contends that he cannot be deemed to have “failed to develop” 14 the record under § 2254(e)(2) during his second post-conviction hearing because that proceeding
15 was a “sham” given his second post-conviction counsel’s abandonment and the state court’s 16 interference. (ECF No. 247 at 5.) These contentions lack merit. 17 First, failure to develop the state-court record under § 2254(e)(2) incorporates Wilson’s 18 second post-conviction counsel’s actions. Indeed, failure to develop the record can come about 19 due to post-conviction counsel’s mere negligence, but it can also come about in the case of more 20 egregious errors. See Williams, 529 U.S. at 431–32 (“In its customary and preferred sense, ‘fail’ 21 connotes some omission, fault, or negligence on the part of the person who has failed to do 22 something.” (citing Webster’s New International Dictionary 910 (2d ed.1939) (defining “fail” as 23 “to be wanting; to fall short; to be or become deficient in any measure or degree,” and “failure” as 1 “a falling short,” “a deficiency or lack,” and an “[o]mission to perform”); Webster’s New 2 International Dictionary 814 (3d ed.1993) (“to leave some possible or expected action 3 unperformed or some condition unachieved”); Black’s Law Dictionary 594 (6th ed.1990) (defining 4 “fail” as “[f]ault, negligence, or refusal”))).
5 Second, regardless of the state court’s refusal to allow Wilson to represent himself, 6 Wilson’s second post-conviction counsel’s errors are imputed on him. See Davila v. Davis, 582 7 U.S. 521, 528 (2017) (stating that “[a]ttorney error that does not violate the Constitution”— 8 including attorney error in post-conviction proceedings, where there is no constitutional right to 9 counsel—“is attributed to the prisoner under ‘well-settled principles of agency law’”); see also 10 Coleman v. Thompson, 501 U.S. 722, 753–54 (1991) (explaining that an attorney’s lack of 11 diligence is attributable to a petitioner “because the attorney is the petitioner’s agent when acting, 12 or failing to act, in furtherance of the litigation” and that the petitioner therefore “‘bear[s] the risk 13 of attorney error’”). Importantly, the Court of Appeals for the Ninth Circuit has attributed post- 14 conviction counsel’s errors onto the petitioner in similar circumstances to the case at hand. See
15 Lee v. Thornell, 108 F.4th 1148, 1161 (9th Cir. 2024) (finding that the petitioner’s post-conviction 16 counsel’s investigator’s oversight was attributable to the petitioner); Fergason v. Johnson, No. 24- 17 2233, 2025 WL 1650015, at *2 (9th Cir. June 11, 2025) (“Fergason’s postconviction counsel’s 18 failure to develop the new valuation expert claim . . . is imputed to Fergason.”). 19 Third, while the Court may sympathize with Wilson’s plight, there is no exception— 20 equitable or otherwise—allowing Wilson to avoid the prerequisites of § 2254(e)(2). See Hampton 21 v. Shinn, 143 F.4th 1047, 1075 (9th Cir. 2025) (stating that, in Shinn, “[t]he Court declined to 22 impose a Martinez-like equitable exception to § 2254(e)(2) that would excuse a prisoner’s failure 23 to develop the state-court record because of the ineffective assistance of his post-conviction counsel.”); 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); Coleman, 501 U.S. at 752 (noting that “there is no constitutional to an attorney in state post-conviction proceedings” even in capital cases); 28 U.S.C. § 2261(e) (“The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising 7|| under section 2254.”). 8 In sum, because the Court did not err in refusing to consider Wilson’s proffered evidence in ground 9, the Court determines that reconsideration under Rule 59(e) is not appropriate. D. CONCLUSION 11 It is therefore Ordered that the Motion to Amend Judgment (ECF No. 228) is DENIED. 12|| To the extent that it is required, the Court denies a Certificate of Appealability because reasonable 13]| jurists would not find this Court’s denial of the Motion to be debatable or wrong. 14 It is further Ordered that the Motions for Extension of Time (ECF Nos. 246, 248) are GRANTED, nunc pro tunc. Wilson’s reply (ECF No. 247) is considered timely filed. 16 It is further kindly Ordered that the Clerk of the Court reclose this action. 17 Dated: March 11, 2026 “hh, Glo . Navarro, Judge 19 United/States District Court 20 21 22 23