govinfo:USCOURTS-laed-2_19-cv-09803-1

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
RICHARD LAY 
 
 CIVIL ACTION 
VERSUS 
 
 NO. 19-9803 
S. W. MCCAIN, ET AL. SECTION “R” (2) 
 
 
ORDER AND REASONS 
 
 
 Before the Court is pro se petitioner Richard Lay’s two motions for a 
new trial 1 and motion to vacate 2 the Court’s Order and Reasons and 
Judgment dismissing with prejudice his petition.3 For the following reasons, 
the Court denies the motions. 
 
 
I. BACKGROUND 
 
 Petitioner Richard Lay filed an application for the writ of habeas 
corpus under 28 U.S.C. § 2254. Lay’s habeas petition, as amended, 
challenged his 2011 state conviction by unanimous jury verdict for battery on 
a correctional facility employee and his related multiple offender 
adjudication. The case was initially referred to Magistrate Judge Joseph C. 
 
1 R. Docs. 60 & 61. 
2 R. Doc. 64. 
3 R. Docs. 57 & 59. 

2 
 
Wilkinson, Jr., who issued a Report and Recommendation (“R&R”) on 
February 28, 2020, recommending dismissal of the petition as procedurally 
barred an d otherwise meritless .4 Lay filed numerous objections to 
Magistrate Judge Wilkinson’s R&R. 5 Subsequently, the Court referred the 
matter to Magistrate Judge Donna Phillips for a supplemental R&R 
addressing Lay’s claim under Ramos v. Louisiana, 140 S. Ct. 1390 (2020). 
Magistrate Judge Currault recommended dismissal of Lay’s Ramos claim in 
the supplemental R&R.6 Lay filed multiple objections to the supplemental 
R&R.7 
This Court considered the petition, the record, the applicable law, the 
Magistrate Judges’ R&Rs, and Lay’s objections, and ultimately adopted the 
Magistrate Judges’ R&Rs as its o pinion, thereby dismissing Lay’s petition 
with prejudice.8 In the Order and Reasons dated June 13, 2023, the Court 
affirmed the Magistrate Judges’ determinations that Lay’s claims are 
meritless, and further determined that his “numerous objections all ei ther: 
(1) mirror the underlying claims in the petition, (2) rehash arguments made 
before the Magistrate Judges, (3) improperly raise new issues not presented 
 
4 R. Doc. 33. 
5 R. Doc. 36, 37 & 42. 
6 R. Doc. 50. 
7 R. Doc. 51 & 54. 
8 R. Doc. 57. 

3 
 
to the Magistrate Judges, or (4) otherwise lack merit due to their conclusory 
nature, failure to address the Magistrate Judges’ relevant recommendations, 
or misstatement of the applicable law. 
Lay now moves for a new trial and to vacate in part the Court’s 
judgment.9 The Court considers the motions below. 
 
II. MOTIONS FOR A NEW TRIAL 
Lay characterizes his motions as motions for new trial. 10 Under 
Federal Rule of Civil Procedure 59(a)(2), a district court may, after the 
completion of a nonjury trial and upon a 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.” Fed. R. Civ. P. 59(a)(2). Because this Court did not hold a 
trial to resolve Lay’s petition for writ of habeas corpus under § 2254, Rule 
59(a) is inapplicable. See, e.g., Vann v. Sec ’y, Dep’t of Corr., No. 8:13-CV-
736-T-30, 2014 WL 1268616 , at *1 (M.D. Fla. Mar. 24, 2014) (finding Rule 
 
9 The Court notes that, although these motions bear the correct case 
number, the captions refer to different cases filed by Lay in this Court. 
For instance, his motion to vacate (R. Doc. 64) and supplement to his 
motion for a new trial (R. Doc. 65) include the caption of Lay v. Marcus 
Meyers, a case before Chief Judge Nannette Jolivette Brown. No. 22 -
2157. 
10 R. Docs. 60 & 61. 

4 
 
59(a) inapplicable where court did not hold trial to resolve § 2254 habeas 
petition); Roberts v. Solomon, No. 08-HC-2083, 2009 WL 10710554, at *1 
(E.D. Cal. Nov. 30, 2009) (same); Tillman v. Warren, No. 04-40092, 2009 
WL 1798118, at *1 (E.D. Mich. June 23, 2009) (same); Strickland v. Lee, No. 
3:02-CV-33, 2007 WL 1792503, *1 (W.D.N.C. June 19, 2007) (same). 
Lay’s motions, which were filed less than twenty -eight days after this 
Court’s entry of judgment, are more appropriately construed as motions to 
alter or amend a judgment under Rule 59(e). See Banister v. Davis, 140 S. 
Ct. 1698, 1702 , 1705 (2020) (holding that Rule 59(e) applies in habeas 
proceedings, and that a Rule 59(e) motion to alter or amend a habeas court’s 
judgment does not count as a second or successive habeas petition ). Rule 
59(e) affords the Court the opportunity “‘to rectify its own mistakes in the 
period immediately following’ its decision.” Id. (quoting White v. N.H. Dep’t 
of Emp. Sec., 455 U.S. 445, 450 (1982) ). A district court has “considerable 
discretion” under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co. , 6 
F.3d 350, 355 (5th Cir. 1993). That said, “[r]econsideration of a judgment 
after its entry is an extraordinary remedy that should be used sparingly.” 
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). “The Court 
must strike the proper bal ance between two competing imperatives: 

5 
 
(1) finality, and (2) the need to render just decisions on the basis of all the 
facts.” Edward H. Bohlin Co., 6 F.3d at 355. 
A motion to reconsider under Rule 59(e) “must clearly establish either 
a manifest error of law or fact or must present newly discovered evidence.” 
Matter of Life Partner Holdings, Inc. , 926 F.3d 103, 128 (5th Cir. 2019) 
(quoting Schiller v. Physicians Res. Grp. Inc. , 342 F.3d 563, 567 (5th Cir. 
2003)). Courts have held that the moving party must show that the motion 
is necessary based on at least one of the following criteria: (1) “correct[ing] 
manifest errors of law or fact upon which the judgment is based;” 
(2) “present[ing] newly discovered or previously unavailable evidence;” 
(3) “prevent[ing] manifest injustice,” and (4) accommodating “an 
intervening change in the controlling law.” Fields v. Pool Offshore, Inc., No. 
97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998). 
Here, Lay seeks reconsideration of the Court’s Order and Reasons and 
Judgment dismissing his habeas petition. In support of his motion s, Lay 
presents the same factual allegations and arguments presented in his 
petition, which this Court previously considered and resolved. Specifically, 
Lay’s Rule 59(e) motions present allegations concerning the State’s improper 
oral amendment of the bill of information after trial began, upgrading the 

6 
 
charged offense from a misdemeanor to a felony. 11 Magistrate Judge 
Wilkinson addressed this allegation, finding it meritless bec ause the 
amendment was not just oral, but was “ announced in court and 
memorialized by handwritten notation on a copy filed into the record during 
a court hearing ” at which Lay and his counsel were present .12 Lay again 
raised allegations about the oral amendment in his objections to Magistrate 
Judge Wilkinson’s R&R, which this Court found to be duplicative of the 
underlying claims in his petition.13 Now, for the third time, Lay raises these 
allegations in his Rule 59(e) motions. Additionally, in a supplement to his 
motions, Lay reiterates his Ramos claims. But he does no more than recite 
the law as stated in Ramos, which Magistrate Judge Currault thoroughly 
considered in the supplemental R&R. 14 Lay’s “recitation of duplicative and 
meritless arguments that have already been exhaustively considered does 
not entitle [him] to a second bite at the apple” through reconsideration under 
Rule 59(e). Vesoulis v. Reshape Lifesciences, Inc. , No. 19 -1795, 2021 WL 
2267676, at *1 (E.D. La. June 3, 2021). 
 
11 R. Docs. 60 & 61. 
12 R. Doc. 33 at 57-58. 
13 R. Doc. 57 at 2 n.5. 
14 R. Doc. 50. 

7 
 
Further, Lay’s motions do not set forth any of the criteria warranting 
reconsideration under Rule 59(e). He does not claim to have discovered new 
evidence; nor does he point to intervening changes in controlling law. He 
likewise fails to establish that t his Court’s order works a manifest injustice. 
He simply rehashes previously rejected arguments concerning the orally 
amended bill of information. Without more, Lay fails to establish that he is 
entitled to the “extraordinary remedy” of reconsideration under Rule 59(e). 
Templet, 367 F.3d at 479. Accordingly, Lay’s Rule 59(e) motions are denied. 
 
III. MOTION TO VACATE 
 
Lay moves the Court to vacate its Order and Reasons and Judgment 
dismissing his habeas petition.15 Lay does not identify the legal basis for his 
motion. Nevertheless, the Court construes the motion as one for relief under 
Rule 60(b) of the Federal Rules of Civil Procedure. A district court has broad 
discretion to grant or deny a motion under Rule 60(b). Lyles v. Medtronic 
Sofamor Danek, USA, Inc., 871 F.3d 305, 315 (5th Cir. 2017). Rule 60(b) 
permits a court to grant relief from a final judgment or order only upon a 
showing of one of the following: 
(1) mistake, inadvertence, surprise, or excusable neglect; 
 
15 R. Doc. 64. 

8 
 
(2) newly discovered evidence t hat, with reasonable diligence, 
could not have been discovered in time to move for a new trial 
under Rule 59(b); 
(3) fraud (whether previously called intrinsic or extrinsic), 
misrepresentation, or misconduct by an opposing party; 
(4) the judgment is void; 
(5) the judgment has been satisfied, released or discharged; it is 
based on an earlier judgment that has been reversed or vacated; 
or applying it prospectively is no longer equitable; or 
(6) any other reason that justifies relief. 
Fed. R. Civ. P. 60(b). Relief under Rule 60(b) is considered an extraordinary 
remedy, but courts may construe the Rule in order to do substantial justice. 
Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998). Courts must balance 
“the sanctity of final judgments and the incessa nt command of the court ’s 
conscience that justice be done in light of all the facts.” Id. (quotation marks 
omitted). 
In the habeas context, a district court presented with a Rule 60(b) 
motion must first determine whether the motion is properly brought und er 
Rule 60(b), or whether it is actually a successive habeas petition, in which 
case the court lacks jurisdiction to consider it pursuant to 28 U.S.C. § 2244, 

9 
 
prohibiting successive habeas petitions. Gonzalez v. Crosby, 545 U.S. 524, 
529-30 (2005) . In Gonzalez v. Crosby , the Supreme Court held that the 
difference lies in the relief that the petitioner seeks. See id. If the motion is 
substantive, seeking “to add a new ground for relief” or attacking “the federal 
court’s previous resolution of a clai m on the merits ,” it is deemed to be a 
successive habeas petition. Id. at 532; see also Tamayo v. Stephens, 740 F.3d 
986, 990 (5th Cir. 2014) (holding that a Rule 60(b) motion is considered 
“successive” if it “raises a new claim or attacks the merits of the district 
court’s disposition of the case ” (citing Adams v. Thaler , 679 F.3d 312, 319 
(5th Cir. 2012))). But if the motion challenges “some defect in the integrity 
of the federal habeas proceedings,” then a Rule 60(b) motion is proper. 
Gonzalez, 545 U.S. at 532; see also Tamayo, 740 F.3d at 990 (“A Rule 60(b) 
directed to a procedural ruling that barred consideration of the merits, such 
as a procedural default, is not considered a ‘successive’ petition and is 
properly brought as a Rule 60(b) motion.’” (citing Adams, 679 F.3d at 319)). 
In his motion, Lay contests the Court’s “false statement” that he did not 
challenge the oral bill of information, arguing that he raised such challenges 
in his objections to Magistrate Judge Wilkinson’s R&R.16 He also seemingly 
challenges the Court’s dismissal of his petition without an evidentiary 
 
16 R. Doc. 64. 

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hearing on the amended bill of information. 17 Because Lay raises no new 
substantive claims in his motion, the motion is properly considered a Rule 
60(b) motion for relief from judgment. See Gonzalez, 545 U.S. at 532. 
Turning to the merits of the motion, the Court finds that Lay fails to 
articulate any specific reasons why he believes it erred when it denied his 
petition for writ of habeas corpus. Lay does not specifically invoke any of the 
first five enumerated grounds for relief under Rule 60(b). He does not allege 
mistake, inadvertence, surprise, or excusable neglect , see Fed. R. Civ. P. 
60(b)(1), newly discovered evidence, see id. 60(b)(2), fraud, 
misrepresentation, or misconduct, see id. 60(b)(3), a void judgment, see id. 
60(b)(4), or a reversed or vacated judgment, see id. 60(b)(5). Accordingly, 
the Court will consider whether his motion affords a basis for relief pursuant 
to Rule 60(b)(6). This relief is “extraordinary,” and Lay bears the burden of 
demonstrating the exceptional circumstances that warrant relief. See Heirs 
of H.P. Guerra v. United States, 207 F.3d 763, 767 (5th Cir. 2000) (citations 
omitted). 
Here, Lay’s argument that the Court falsely concluded that he failed to 
contest the oral bill of information18 is unfounded and unavailing. Nowhere 
 
17 Id. 
18 Id. 

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in the Magistrate Judges’ R&Rs or this Courts Order and Reasons did the 
Court find that Lay failed to challenge the oral bill of information. Indeed, 
Lay clearly challenged the constitutionality of the oral amendment of the bill 
of information in his petition and in his objections to Judge Wilkinson’s 
R&R. And the Court appropriately dismissed these challenges as meritless 
based on the record, which contained a handwritten amendment to the bill 
of information received in open court, in the presence of Lay and his counsel, 
during Lay’s state court trial.19 
Lay also appears to challenge the lack of an evidentiary hearing on the 
amended bill of information in his habeas proceeding. A district court may 
hold an evidentiary hearing only when the petitioner shows that either the 
claim relies on a new, retroactive rule of constitutional law that was 
previously unavailable, 28 U.S.C. § 2254(e)(2)(A)(i), or the claim relies on a 
factual basis that could not have been previously discovered by exercise of 
due diligence, id. § 2254(e)(2)(A)(ii); and that the facts underlying the claim 
show by clear and convincing evidence that, but for the constitutional error, 
no reasonable jury would have convicted the petitioner. Id. § 2254(e)(2)(B). 
As previously determined, Lay’s claims concerning the oral bill of 
information did not meet this statutory standard. 
 
19 R. Doc. 33 at 58. 

12 
 
Accordingly, Lay’s motion fails to show “extraordinary circumstances” 
justifying the reopening of the Court’s final judgment under Rule 60(b)(6). 
 
IV. CERTIFICATE OF APPEALABILITY 
 
A certificate of appealability (“COA”) is required to appeal the denial of 
Rule 59(e) and Rule 60(b) motions filed after the denial of a § 2254 petition. 
See Aus tin v. Davis , 693 F. App’x 342, 343 (5th Cir. 2017) (citing Ochoa 
Canales v. Quarterman , 507 F.3d 884, 888 (5th Cir. 2007) ); Williams v. 
Davis, 713 F. App’x 354, 355 (5th Cir. 2018) (citing Ochoa Canales, 507 F.3d 
at 888). The court may issue a COA only i f the petitioner makes “a 
substantial showing of the denial of a constitutional right.” 28 U.S.C. 
§ 2253(c)(2). The “controlling standard” for COA requires the petitioner to 
show “that reasonable jurists could debate whether (or, for that matter, agree 
that) the petition should have been resolved in a different manner or that the 
issues presented [are] adequate to deserve encouragement to proceed 
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. 
McDaniel, 529 U.S. 473, 484 (2000 ) (internal quotation marks omitted)). 
“‘When the district court denies a habeas petition on procedural grounds 
without reaching the prisoner’s underlying constitutional claim,’ . . . a [COA] 
should issue only when the prisoner shows both ‘that jurists of reason would 

13 
 
find it debatable whether the petition states a valid claim of the denial of a 
constitutional right and that jurists of reason would find it debatable 
whether the district court was correct in its procedural ruling. ’” Jimenez v. 
Quarterman, 555 U.S. 113, 118 n.3 (2009) (emphasis in original) (quoting 
Slack v. McDaniel, 529 U.S. 473, 484 (2000)); Gibson, 2014 WL 1066987, at 
*1 (quoting Slack, 529 U.S. at 484); Bourque, 296 F. App’x at 396 (quoting 
Slack, 529 U.S. at 484). 
Lay has not met these standards. Accordingly, the Court will not issue 
a COA as to his Rule 59(e) and 60(b) motions. 
 
V. CONCLUSION 
 
For the foregoing reasons, the Court DENIES WITH PREJUDICE 
petitioner Lay’s motions and DENIES a certificate of appealability. 
 
 
 
 
 
New Orleans, Louisiana, this _____ day of September, 2023. 
 
 
_____________________ 
SARAH S. VANCE 
UNITED STATES DISTRICT JUDGE 
 
 
18th

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