Melendez v. Fizer
Filing
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MEMORANDUM OF DECISION AND ORDER, denying Petitioner's Motion for Rule 60(b) Relief from Judgment 37 ; denying Petitioner's Motion for Counsel 36 . Signed by Senior Judge Stephen M McNamee on 7/19/13.(REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Louis Alfonso Melendez,
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Petitioner,
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vs.
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Warden Greg Fizer,
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Respondent.
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No. CV-05-0891-PHX-SMM
MEMORANDUM OF DECISION
AND ORDER
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Pending before the Court is Petitioner Louis Melendez’s (“Petitioner”) Motion for
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Rule 60(b) Relief as well as his Motion for Appointment of Counsel (Docs. 36, 37.) The
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Court makes the following ruling.
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BACKGROUND
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In June 1992, Petitioner was charged by the state of Arizona with child abuse and
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first-degree murder. In 1994, he was convicted by a jury on both charges, but his
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convictions were reversed on appeal. On retrial, Petitioner was again found guilty by a jury.
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Petitioner then received life imprisonment with parole eligibility and consecutive twelve-
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year prison terms for child abuse. The Arizona Court of Appeals affirmed the convictions
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but modified the sentences for child abuse to run concurrently. Counsel during the second
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trial and appeal was attorney Michael Bernays.
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Petitioner then filed a petition for post-conviction relief pursuant to Ariz.R.Crim.P.
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32.1 in the trial court. Counsel for Petitioner raised claims of ineffective assistance of trial
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counsel as well as appellate counsel. The trial court denied both issues on the merits and the
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Arizona Court of Appeals denied the petition for review without comment. Counsel during
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the post-conviction relief proceedings was attorney Robert Arentz.
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Petitioner then filed a federal habeas corpus petition raising the same grounds
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presented to the Arizona Court of Appeals. This Court adopted the Report and
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Recommendation (Doc. 19) filed by Magistrate Judge Virginia Mathis, which recommended
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denying Petitioner’s habeas corpus petition because he had failed to properly exhaust his
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state court remedies pursuant to Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999).
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Petitioner then filed a motion for Rule 60(b) relief (Doc. 25), similar to his currently pending
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motion, which this Court denied because Petitioner had not properly exhausted state
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remedies and could not establish cause to excuse his procedural default.
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Now, Petitioner, hoping to rely on newly decided case law, has filed yet another Rule
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60(b) motion for relief. In support of the motion, he states that in the intervening years since
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this Court’s judgment of 2007, he was abandoned by his attorney, Lori Smith, from the
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Foundation for Innocence LLC located in Hawaii, whom he “retained” for his federal habeas
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corpus petition. (Doc. 37 at 5.) Further, Petitioner asks the Court to appoint counsel. (Doc.
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36.)
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STANDARD OF REVIEW
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I. Exhaustion and Procedural Default of Claims
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A federal court has authority to review a federal constitutional claim presented by a
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state prisoner if available state remedies have been exhausted. Duckworth v. Serrano, 454
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U.S. 1, 3 (1981) (per curiam); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991).
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Claims presented in habeas petitions are considered exhausted if they have been ruled upon
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by the Arizona Court of Appeals, unless the sentence received is life imprisonment, which
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requires an Arizona Supreme Court ruling. See Swoopes v. Sublett, 196 F.3d 1008, 1010
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(9th Cir. 1999). Failure to make a claim in compliance with state procedures is generally
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characterized as “procedural default.” In instances where a petitioner procedurally defaults,
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he or she may not obtain federal habeas review of that claim absent a showing of “cause and
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prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984); Wainwright
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v. Sykes, 433 U.S. 72, 90-91 (1977).
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II. Rule 60(b) Reconsideration
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Rule 60(b) permits reconsideration of a district court order based on: (1) mistake,
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inadvertence, surprise, or excusable neglect; (2) newly-discovered evidence which by due
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diligence could not have been discovered in time to move for a new trial under Rule 59; (3)
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fraud, misrepresentation, or misconduct by an adverse party; (4) the judgment is void; (5)
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the judgment, released, or discharged, or a prior judgment upon which it is based has been
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reversed or otherwise vacated, or it is no longer equitable that the judgment should have
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prospective application; or (6) any other reason justifying relief from the operation of the
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judgment. See Fed. R. Civ. P. 60(b)(1)-(b)(6). Rule 60 reconsideration is generally
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appropriate in three instances: (1) when there has been an intervening change of controlling
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law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or
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prevent manifest injustice. School District No. 1J v. AcandS, Inc., 5 F.3d 1255, 1262 (9th
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Cir. 1993). A Rule 60(b) motion must be brought within a “reasonable” time, which cannot
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be more that one year if the motion is based on mistake, newly-discovered evidence, or
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fraud. See Fed. R. Civ. P. 60(b).
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III. Appointment of Counsel
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There is no constitutional right to appointment of counsel in a civil case. Johnson v.
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U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). Appointment of counsel in a civil
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rights case is required only when exceptional circumstances are present. Terrell v. Brewer,
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935 F.2d 1015, 1017 (9th Cir. 1991) (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331
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(9th Cir. 1986)). In determining whether to appoint counsel, the court should consider the
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likelihood of success on the merits, and the ability of petitioner to articulate his claims in
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view of their complexity. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
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DISCUSSION
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Petitioner cites an intervening change of controlling law, specifically under Martinez
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v. Ryan, 132 S. Ct. 1309 (2012) and Maples v. Thomas, 132 S. Ct. 912 (2012), as grounds
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for his Motion for Relief from this Court’s judgment (Docs. 21 and 27) regarding his
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procedurally defaulted ineffective assistance of counsel claims. The Petitioner’s delay in
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filing the Rule 60(b) Motion for Relief is excused; the Court recognizes and appreciates that
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Petitioner is a pro se litigant and that the changes to controlling law are relatively recent.
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I. Martinez v. Ryan
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Martinez, a recent case decided in 2012, highlights a narrow circumstance that may
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establish sufficient cause for excusing a petitioner’s claim that has been procedurally
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defaulted. It states that “[i]nadequate assistance of counsel at [post-conviction relief]
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proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
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assistance at trial.” Martinez, 132 S.Ct. at 1315. A petitioner only falls under this exception
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if he is able to show that his counsel at the very first post-conviction relief was ineffective.
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Id. at1318.
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Petitioner’s claims, however, do not meet the standard set out in Martinez. There is
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no indication that Petitioner’s attorney at his initial post-conviction relief proceedings,
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Robert Arentz, was ineffective by failing to sufficiently represent Petitioner in an acceptable
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manner. Rather, the record shows that PCR counsel Arentz properly raised claims of
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ineffective assistance of trial counsel which were denied by the trial court. Therefore, the
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Court will deny Petitioner’s motion for relief as to his argument under Martinez.
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II. Maples v. Thomas
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The Court in Maples, also created another narrow circumstance wherein a Petitioner’s
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procedurally defaulted claim may be excused. The Court held that “a [petitioner] cannot be
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charged with the acts or omissions of an attorney who has abandoned him” during state level
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proceedings. Maples, 132 S.Ct. at 924. Thus, abandonment by counsel, which results in a
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procedurally defaulted claim, may provide sufficient justification for excusing the procedural
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default and allowing federal habeas review.
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Here, Petitioner does not present any evidence by which this Court may conclude that
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he was abandoned by his attorneys, Michael Bernays or Robert Arentz, while his case was
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pending at the state level. Furthermore, Petitioner argues that this Court’s Order from May
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16, 2007 (Doc. 27) should be set aside because he was abandoned by his attorney from
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Hawaii, Lori Smith, who represented him during federal habeas proceedings. This argument
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fails, however, for two significant reasons. First, and most importantly, Maples does not
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apply to abandonment by an attorney during federal habeas proceedings1. And second, even
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if Maples applied to federal habeas proceedings, Petitioner has not presented sufficient
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evidence that demonstrates that he was abandoned by his attorney. Therefore, the Court will
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deny Petitioner’s motion for relief from judgment in regards to his argument under Maples.
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III. Appointment of Counsel
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In analyzing Petitioner’s Motion for Appointment of Counsel (Doc. 36), exceptional
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circumstances do not exist in this case. Petitioner has not demonstrated a likelihood of
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success on the merits, nor has he shown that he is experiencing difficulties litigating the case
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because of the complexity of the issues involved. Therefore, the Court will deny Petitioner’s
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motion to appoint counsel.
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CONCLUSION
IT IS HEREBY ORDERED denying Petitioner’s Motion for Rule 60(b) Relief from
Judgment (Doc. 37.)
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IT IS FURTHER ORDERED denying Petitioner’s Motion for Counsel. (Doc. 36.)
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DATED this 19th day of July, 2013.
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There also is no constitution right to effective assistance of counsel on discretionary
appeals, which include federal habeas review proceedings. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987).
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