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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Apelt, 10 11 Petitioner, vs. 12 13 14 15 Charles L. Ryan, et al., Respondents. ) No. CV-98-0882-PHX-ROS ) ) DEATH PENALTY CASE ) ) ORDER ) ) ) ) ) ) ) 16 Pending before the Court is Petitioner’s motion for reconsideration and stay regarding 17 this Court’s Order determining the procedural status of his sentencing claims. (Doc. 277.) 18 Petitioner presents two arguments. He first argues that at his initial state post-conviction 19 relief (“PCR”) proceeding his counsel operated under such a conflict of interest that the 20 conflict excused counsel’s failure to raise all ineffective assistance of counsel (“IAC”) claims 21 at sentencing, as was required. (Id. at 7-8.) Next, he challenges the state court’s application 22 of Ariz. R. Crim. P. 32.2(a)(3) precluding his IAC sentencing claims, contending that the 23 court’s application frustrated his ability to exercise his federal rights, thus rendering the rule 24 inadequate to establish procedural default. (Id. at 9-12.) 25 Generally, motions to reconsider are appropriate only if the Court “(1) is presented 26 with newly discovered evidence, (2) committed clear error or the initial decision was 27 manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. 28 No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A 1 motion for reconsideration is not a forum for the moving party to make new arguments not 2 raised in its original briefs, Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 3 F.2d 918, 925-926 (9th Cir. 1988), nor is it the time to ask the court to “rethink what it has 4 already thought through,” United States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D. Ariz. 5 1998) (quotation omitted). 6 At issue in Petitioner’s first argument is the United States Supreme Court’s recent 7 action granting certiorari in Maples v. Thomas, 131 S. Ct. 1718 (U.S. 2011), on the issue of 8 cause to excuse procedurally defaulted claims in state court. Specifically, the Court agreed 9 to review cause to excuse default where the petitioner was blameless, the State’s own 10 conduct contributed to the default, and petitioner’s attorney of record was no longer 11 functioning as his agent at the time of the default. See Maples v. Allen, No. 10-63, 2010 WL 12 2727329 (U.S. July 9, 2010) (granting petition for certiorari limited to issue number 2). 13 Regarding this argument, however, Petitioner concedes that “[p]reviously, post- 14 conviction counsel’s conflict has not been sufficient cause to excuse procedural default.” 15 (Doc. 277 at 8) (emphasis added.) Petitioner’s appropriately concedes this point; the Court 16 thoroughly addressed and denied this argument in its earlier Order. See Doc. 132 at 21-22.) 17 Even though Petitioner states that Maples may change the legal landscape when issued, that 18 hope is insufficient to constitute an intervening change in controlling law. Therefore, the 19 Court will not reconsider its resolution of this issue. 20 Next, regarding the state court’s application of Ariz. R. Crim. P. 32.2(a)(3) precluding 21 his IAC sentencing claims, Petitioner contends the court’s application “frustrated his right 22 to effective assistance of post-conviction counsel.” (Doc. 277 at 9.) The Court has already 23 addressed and denied this argument. (Doc. 132 at 21-24, Doc. 180 at 3-4.) Again, Petitioner 24 relies upon the possibility that the Supreme Court may take up this issue. (See Doc. 277 at 25 11-12.) In Cook v. Ryan, No. 10-9742, 2011 WL 1234018 (April 4, 2011) and in Foster v. 26 Texas, 131 S. Ct. 991 (2011), the Court recently granted stays of execution pending 27 disposition of petitioners’ request for certiorari on the issue of their right to effective 28 assistance of post-conviction counsel during initial post-conviction review proceedings. -2- 1 However, the hope that the Supreme Court will grant certiorari and conclude that such a right 2 exists is insufficient to constitute an intervening change in controlling law. Therefore, the 3 Court will not reconsider its resolution of this issue. 4 Accordingly, 5 IT IS HEREBY ORDERED that Petitioner’s motion for reconsideration and stay of 6 its Order determining the procedural status of his sentencing claims (Doc. 277) is DENIED. 7 DATED this 9th day of May, 2011. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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