Apelt, et al v. Schriro, et al

Filing 279

ORDER that Petitioner's 277 motion for reconsideration and stay of its Order determining the procedural status of his sentencing claims is DENIED. Signed by Chief Judge Roslyn O Silver on 05/09/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Apelt,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
Respondents.

) No. CV-98-0882-PHX-ROS
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) DEATH PENALTY CASE
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ORDER
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Pending before the Court is Petitioner’s motion for reconsideration and stay regarding

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this Court’s Order determining the procedural status of his sentencing claims. (Doc. 277.)

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Petitioner presents two arguments. He first argues that at his initial state post-conviction

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relief (“PCR”) proceeding his counsel operated under such a conflict of interest that the

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conflict excused counsel’s failure to raise all ineffective assistance of counsel (“IAC”) claims

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at sentencing, as was required. (Id. at 7-8.) Next, he challenges the state court’s application

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of Ariz. R. Crim. P. 32.2(a)(3) precluding his IAC sentencing claims, contending that the

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court’s application frustrated his ability to exercise his federal rights, thus rendering the rule

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inadequate to establish procedural default. (Id. at 9-12.)

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Generally, motions to reconsider are appropriate only if the Court “(1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.

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No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A

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motion for reconsideration is not a forum for the moving party to make new arguments not

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raised in its original briefs, Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841

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F.2d 918, 925-926 (9th Cir. 1988), nor is it the time to ask the court to “rethink what it has

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already thought through,” United States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D. Ariz.

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1998) (quotation omitted).

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At issue in Petitioner’s first argument is the United States Supreme Court’s recent

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action granting certiorari in Maples v. Thomas, 131 S. Ct. 1718 (U.S. 2011), on the issue of

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cause to excuse procedurally defaulted claims in state court. Specifically, the Court agreed

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to review cause to excuse default where the petitioner was blameless, the State’s own

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conduct contributed to the default, and petitioner’s attorney of record was no longer

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functioning as his agent at the time of the default. See Maples v. Allen, No. 10-63, 2010 WL

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2727329 (U.S. July 9, 2010) (granting petition for certiorari limited to issue number 2).

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Regarding this argument, however, Petitioner concedes that “[p]reviously, post-

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conviction counsel’s conflict has not been sufficient cause to excuse procedural default.”

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(Doc. 277 at 8) (emphasis added.) Petitioner’s appropriately concedes this point; the Court

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thoroughly addressed and denied this argument in its earlier Order. See Doc. 132 at 21-22.)

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Even though Petitioner states that Maples may change the legal landscape when issued, that

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hope is insufficient to constitute an intervening change in controlling law. Therefore, the

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Court will not reconsider its resolution of this issue.

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Next, regarding the state court’s application of Ariz. R. Crim. P. 32.2(a)(3) precluding

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his IAC sentencing claims, Petitioner contends the court’s application “frustrated his right

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to effective assistance of post-conviction counsel.” (Doc. 277 at 9.) The Court has already

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addressed and denied this argument. (Doc. 132 at 21-24, Doc. 180 at 3-4.) Again, Petitioner

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relies upon the possibility that the Supreme Court may take up this issue. (See Doc. 277 at

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11-12.) In Cook v. Ryan, No. 10-9742, 2011 WL 1234018 (April 4, 2011) and in Foster v.

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Texas, 131 S. Ct. 991 (2011), the Court recently granted stays of execution pending

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disposition of petitioners’ request for certiorari on the issue of their right to effective

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assistance of post-conviction counsel during initial post-conviction review proceedings.
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However, the hope that the Supreme Court will grant certiorari and conclude that such a right

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exists is insufficient to constitute an intervening change in controlling law. Therefore, the

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Court will not reconsider its resolution of this issue.

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Accordingly,

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IT IS HEREBY ORDERED that Petitioner’s motion for reconsideration and stay of

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its Order determining the procedural status of his sentencing claims (Doc. 277) is DENIED.

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DATED this 9th day of May, 2011.

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