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Case 2:09-cv-00261-ABJ Document 299 Filed 01/26/15 Page 1 of 9

Terry J. Harris
HARRIS & HARRIS, P.C.
P.O. Box 368
211 West 19th Street, Suite 110
Cheyenne, Wyoming 82003-0368
Telephone (307) 638-6431
Sean D. OBrien
4920 N. Askew
Kansas City, MO 64119
Telephone (816) 235-6152; Facsimile (816) 235-5276
Lindsay J. Runnels
Morgan Pilate
926 Cherry Street
Kansas City, MO 64106
Telephone (816) 471-6694
Attorneys for Dale Eaton
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
DALE W. EATON,
Petitioner,
v.
EDDIE WILSON, et al.
Respondents.

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) Civil Action No. 09CV261-ABJ
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PETITIONERS REPLY TO RESPONSE IN OPPOSITION TO PETITIONERS


MOTION TO MODIFY JUDGMENT PURSUANT TO RULE 59(E), F.R.C.P.
COMES NOW, Petitioner Dale W. Eaton, and in reply to Respondents Response in
Opposition to Petitioners Motion to Modify Judgment Pursuant to Rule 59(e) F.R.C.P. (Doc.
294) states as follows.
1. Mr. Eaton has established that since his unconstitutional trial, dozens of witnesses who
could have and would have provided persuasive mitigating testimony have passed away. While

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these witnesses were available to Mr. Skaggs for the mitigation case, they are forever lost to Mr.
Eaton because of Mr. Skaggs ineffectiveness. In fact, since the filing of this Courts November
20, 2014 Order, yet another mitigation witness, Johnny Miller of Lander, Wyoming, has passed
away. Mr. Eaton and many of his witnesses are elderly and not in good health. It is simply
impossible for Mr. Eaton to have the fair sentencing hearing that he would have had if Mr.
Skaggs had performed competently in 2004. Respondents assertions to the contrary, such
circumstances are within the power and discretion given this Court under Rule 59(e).
2. The Rule 59(e) relief requested is appropriate because this Courts Order granting relief
does not purge the prejudice Mr. Eaton suffered by Mr. Skaggs unconstitutionally deficient
performance. While the States case, based primarily on forensic evidence and law enforcement
personnel, remains completely intact, Mr. Eatons pool of mitigation witnesses continues to
diminish due to the age and frailty of Mr. Eatons witnesses, while Mr. Eatons own mental
capacity also continues to diminish with the passage of time. Mr. Eaton will be 70 years old on
February 10, is not in the best of health and, like virtually all males in the Farrens and Eaton
families, his dementia worsens with age.

Even with highly skilled counsel and adequate

investigative and litigation resources, Mr. Eaton cannot be provided a sentencing trial as
complete and as fair as the trial that Wyoming was constitutionally obligated to provide in 2004.
Respondent is incorrect to suggest that Rule 59 renders this Court powerless to do anything
about that. The opposite is true; Rule 59 endows this Court with tremendous power and
discretion.
3. Contrary to Respondents suggestion, this Courts power to grant the requested relief is
beyond question. Whether to alter a judgment under Rule 59(e) of the Federal Rules of Civil
Procedure is a decision entrusted to the sound judgment of the trial court. A district court's denial

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of a Rule 59(e) motion, although final and appealable, may be reversed only for a manifest abuse
of discretion. Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1 (1st Cir. 1991). The language of Rule
59 is expansive:
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or
some of the issues--and to any party--as follows:
(A) after a jury trial, for any reason for which a new trial has heretofore been
granted in an action at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing has heretofore
been granted in a suit in equity in federal court.
(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on
motion for a new trial, open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new ones, and
direct the entry of a new judgment.
Rule 59 (emphasis added). The First Circuit colorfully described the scope of this Courts
discretion; We have repeatedly held that, once the ball has ended, the district court has
substantial discretion in deciding whether to strike up the band again in order to allow the losing
party to argue new material or a new theory. In re Spittler, 831 F.2d 22, 24 (1st Cir. 1987)
(emphasis added); accord, Binkley Co. v. Eastern Tank, Inc., 831 F.2d 333, 337 (1st Cir. 1987)
(Under Fed. R. Civ. P. 59(e), a district court has wide discretion whether to alter or amend a
judgment.). An order granting or denying a Rule 59 Motion is reviewed on appeal not for a
mere abuse of the district courts discretion, but for a manifest abuse of discretion. Id; see also
Kaercher v. Trustees of Health & Hospitals, Inc., 834 F.2d 31, 34 (1st Cir. 1987). In a nutshell,
Rule 59(e) provides an efficient mechanism by which the trial court can correct otherwise
erroneous judgment without implicating the appellate process. Clipper Express v. Rocky Mt.
Motor Traffic Bureau, 674 F.2d 1252, 1260 (9th Cir. 1982). Such a motion enabled the trial
judge to reconsider the validity of his judgment, and to vacate or alter it as he, saw, fit. Id. The

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court reasoned that endowing district courts with wide discretion to alter or amend judgments
may have the desirable effect of avoiding further unnecessary litigation. Id.
4. Respondent cites a number of cases purporting to limit the circumstances under which a
district court may alter or amend its judgment in response to a Rule 59 motion, but the Tenth
Circuit cases relied upon by Respondent, see Respondents Opposition, p. 1, have one principle
in common: the appellate court will defer to the district courts discretion, regardless of whether
the district court denies or grants the motion. See Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000) (the district court did not abuse its discretion in denying a Rule
59(e) motion); and United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014), where the
district court sustained a motion to reconsider its order, and the Court of Appeals affirmed the
modified judgment, stating, We defer to the district court's discretion to correct its mistakes.
Appellate decisions reversing a district courts decision granting or denying a motion to alter or
amend a judgment are extremely rare; one such circumstance, however, can be found when a
district court denied without explanation a Rule 59(e) motion asking the court to alter or amend
the judgment with respect to the remedy ordered. Evans v. Bexley, 750 F.2d 1498, 1500 (11th Cir.
1985) (district court abused its discretion in denying Rule 59(e) motion to alter or amend
judgment to include attorney fees). Respondents authority simply demonstrates that there is a
vast difference between the standard applied by the district court in the first instance, and that
applied by a reviewing court after the fact. Thus, this Court has both the power and duty to
consider the merits of Mr. Eatons Motion to Alter or Amend this Courts Judgment.
5. There is also no merit to Respondents suggestion that there has been a lack of diligence
on Mr. Eatons part which forecloses consideration of his motion and supporting evidence. To
the contrary, the testimony of Russell Stetler enumerated the deceased witnesses, see Ex. 328,

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slides 25 & 26. Further, as pointed out in Mr. Eatons original motion, this Courts order
included explicit acknowledgment of the value of multiple mitigation witnesses who have passed
away. Order, pp. 140-141 (John, Sybil and Lyn Barney); 148 (Mirabel Thomison); 152 (Alan
Eaton); 177 (Johnny Miller); 233 (Loren and Betty Farrens); 155 (Marilu OMalley); 327 (Ron
and Kerry Rose); 327 (Floyd Widmer); 333- 34 (Doris Buchta); 275, n. 28 (Merle Eaton). The
deceased mitigation witnesses are twice the number of life history witnesses Mr. Skaggs called
to testify at Mr. Eatons trial. The fact that this Courts Order discusses the mitigating evidence
that could have been provided by many now-deceased witnesses belies Respondents complaint
that the evidence supporting this issue was not presented earlier. There is no valid reason to
ignore evidence relevant to what remedy is appropriate for the constitutional violations found by
this Court, and there is no reason for this Court to ignore the number and quality of witnesses
who have died before, during, and after this case has been under submission.
6. Respondent argues that that Mr. Eaton will nevertheless have a fair sentencing hearing
because he was able to persuade this Court that a competent performance by Mr. Skaggs would
have produced a different outcome at his trial. Resp. Opp. p. 5. That is not the issue; this Courts
analysis under Strickland and its progeny necessarily looks back to the time of trial at what
defense counsel could have done to advocate for a life sentence for Mr. Eaton. The question of
remedy must look forward to determine what relief can put Mr. Eaton in the position he should
have been in had the State of Wyoming respected his constitutional right to competent
representation. Lafler v. Cooper, 132 S. Ct. 1376, 1388-89 (2012). While Respondent makes
much of Laflers discussion about a remedy that results in a windfall to the petitioner, the
factual circumstances of that case are different from Mr. Eatons. Mr. Cooper was granted
habeas relief because his rejection of the prosecutors plea offer was based on inept advice from

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his attorney. The lower courts ordered relief in the form of resentencing within the precise terms
of the offerspecific performance. The Supreme Court agreed that Mr. Cooper was entitled to
relief, but modified the relief to place him in exactly the position he would have been in had he
accepted the plea offer: convicted of the crime, and facing a sentencing hearing on a restricted
range of punishment before a court with discretion to accept or reject the prosecutors
recommendations. There was no evidence that the passage of time impaired Mr. Coopers ability
to defend himself in this position. In fact, the Court in Lafler rejected the very argument that
Respondent now asserts, emphasizing that it has not followed a rigid rule that an otherwise fair
trial remedies errors, and instead inquires whether the trial cured the particular error at issue.
Id., 1386. This Court found Mr. Skaggs ineffective for, among other deficiencies, failing to
interview and present the mitigating testimony of John, Lyn and Sybil Barney, Alan Eaton, Sally,
Ron and Kerry Rose, Mirabel Thompson, Marilu OMalley, Johnny Miller, Floyd Widmer, Dean
Schifferns, Doris Buchta and Merle Eaton. Because these witnesses are deceased, the error at
issue is beyond cure. Further, this Court found Mr. Skaggs ineffective for failing to interview
and present the mitigating testimony of Jimmy Hoopes, Irva Lange, Mark Dotson, Steve DuBry,
and others who are now too ill and infirm to travel and testify in a capital trial. The humanizing
evidence that each of these witnesses could have provided is also lost or Mr. Eatons ability to
present it is substantially impaired. Therefore, these particular errors also cannot be cured upon a
retrial.
7. The issue of whether Mr. Eaton can ever receive the fair sentencing hearing that
Wyoming was constitutionally obliged to provide in 2004 was put in sharp relief by this Courts
Order highlighting the wealth of mitigation evidence that has been lost by the passage of time.
Deaths and advancing age and infirmities since this case was under submission only add to the

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weight of Mr. Eatons present argument. Further, the Tenth Circuit Court of Appeals ruling in
United States v. Bergman, 746 F.3d 1128, 1133 (10th Cir. 2014), which explicitly acknowledged
that the death of defense witnesses would be a circumstance justifying the unconditional grant of
habeas relief, was published March 23, 2014, after the completion of all post-hearing briefing
before this Court. Reconsideration simply allows the Court to address oversights, and the court
appreciates the opportunity to do so. In re Johnson, 480 B.R. 305, 310 (N.D. Ill. 2012), quoting
Magnum Opus Techs., Inc. v. United States, 94 Fed. Cl. 553, 554-55 (Fed. Cl. 2010). It is not a
surprise to anyone that the issue of what remedy to which Mr. Eaton is entitled could arise, 389
Orange Street Partners v. Arnold, 179 F.3d 656, 663 (9th Cir. 1989), and Respondent has made
no credible showing of how or why he is prejudiced by squarely addressing the issue at the
present time. Fixing the issue of what relief is appropriate is exactly the kind of manifest error
that Rule 59(e) is intended to protect, In re Johnson, supra, at p. 308. A limited proceeding under
Rule 59(e) also is consistent with this Courts authority set forth in 28 U.S.C. 2243 to dispose
of Mr. Eatons habeas petition as law and justice require. See Hilton v. Braunskill, 481 U.S.
770, 775 (1987) (Federal habeas corpus practice, as reflected by the decisions of this Court,
indicates that a court has broad discretion in conditioning a judgment granting habeas relief.
Federal courts are authorized, under 28 U. S. C. 2243, to dispose of habeas corpus matters as
law and justice require.). The habeas corpus statutes mandate is broad with respect to the
relief that may be granted. Carafas v. LaVallee, 391 U.S. 234, 239 (1968). The Court, in
applying Rule 59 to a habeas proceeding, has recognized the rule and its requirement for prompt
reconsideration is well suited to the special problems and character of such proceedings.
Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 271 (1978), quoting
Harris v. Nelson, 394 U.S. 286, 296 (1969). As the Tenth Circuit has recognized, a federal court

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possesses power to grant any form of relief necessary to satisfy the requirement of justice.
Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992) (emphasis in Burton), quoting Levy v.
Dillon, 415 F.2d 1263, 1265 (10th Cir. 1969). Mr. Eatons Rule 59 motion does not inject new
claims into the case, or seek to relitigate old matters or advance new legal theories, but simply to
address an issue put in sharp relief by the findings and reasoning of the Judgment itself: can Mr.
Eaton be put in the position he would have been in had Mr. Skaggs performed competently?
Ample evidence before the Court indicates not, and the prejudice Mr. Eaton suffered as a result
of Mr. Skaggs deficient performance continues to grow.
For the foregoing reasons, this Court should modify its November 20, 2014 Order to
prohibit retrial of the penalty phase of Mr. Eatons trial, hold a hearing and permit Mr. Eaton to
proffer documentary evidence and testimony regarding the loss of witnesses and evidence, and
grant such further relief as the Court deems just and appropriate.
DATED this 26th day of January, 2015.
Respectfully submitted,

/s/ TJH for Sean D. OBrien____________


Sean D. OBrien, MoBar # 30116
4920 N. Askew
Kansas City, MO 64119-4700
Telephone (816) 235-6152
E-mail: obriensd@umkc.edu

/s/ TJH for Lindsay J. Runnels


MORGAN PILATE
Lindsay J. Runnels, MoBar # 62075
926 Cherry Street
Kansas City, MO 64106
Telephone: (816) 471-6694
Email: lrunnels@morganpilate.com

Case 2:09-cv-00261-ABJ Document 299 Filed 01/26/15 Page 9 of 9

/s/ Terry J. Harris_____________________


HARRIS & HARRIS, P.C.
Terry J. Harris WyBar # 5-2068
P.O. Box 368
211 West 19th Street, Suite 110
Cheyenne, Wyoming, 82003-0368
E-mail to: tjharrispc@gmail.com

CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of January, 2015, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which sent notification of such filing to:
David Delicath, Deputy Attorney General
John Michael Causey, Senior Assistant Attorney General
Meri V. Geringer, Senior Assistant Attorney General
123 State Capitol Building
Cheyenne, Wyoming 82002
s/Terry J. Harris________________
Terry J. Harris

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