Martinez, et al v. Ryan, et al
Filing
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ORDER denying Petitioner's 128 Motion to Alter or Amend Judgment Pursuant to Rule 59(e). Signed by Senior Judge Roslyn O. Silver on 6/16/16.(CLB)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Ernesto Salgado Martinez,
Petitioner,
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v.
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No. CV-05-01561-PHX-ROS
DEATH PENALTY CASE
Charles L. Ryan, et al.,
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ORDER
Respondents.
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Pending before the Court is Petitioner’s motion to alter or amend the Court’s
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order, entered March 31, 2016, pursuant to Rule 59(e) of the Federal Rules of Civil
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Procedure. (Doc. 128.) Petitioner argues that the Court should amend its order to include
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the issuance of a certificate of appealability (“COA”) with respect to Petitioner’s
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Renewed Request for Indication Whether the Court Would Consider a Rule 60(b)
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Motion, and also with respect to the Court’s finding that Petitioner failed to establish
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cause and prejudice, in the form of state post-conviction relief (“PCR”) ineffectiveness
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under Martinez v. Ryan, 132 S. Ct. 1309 (2012), to overcome the procedural default of
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Claims 11, 12 and 17 in Petitioner’s § 2254 petition. For the reasons set forth below, the
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motion will be denied.
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DISCUSSION
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As an initial matter, Respondents urge this Court to find Petitioner’s motion, filed
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on April 28, 2016, untimely. A motion filed pursuant to Rule 59(e) of the Federal Rules
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of Civil Procedure must be filed “no later than 28 days after the entry of the judgment.”
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Respondents assert that the relevant date of entry of judgment in this case is March 21,
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2008, when the Court denied Petitioner’s amended petition for writ of habeas corpus, and
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entered judgment for Respondents. (See Docs. 88 and 89.) Respondents further assert that
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the Court’s order, filed on March 31, 2016, did not affect or reopen the judgment entered
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March 21, 2008. The Court agrees.
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Petitioner cannot bring his motion pursuant to Rule 59(e) because this Court’s
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March 31, 2016 order was not a final judgment or an appealable interlocutory order. See
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Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) (noting that
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Rule 59(e) only applies to final judgments and appealable interlocutory orders). While
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Petitioner asserts that the Ninth Circuit’s remand order clearly contemplated that habeas
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relief could be granted within the context of Rule 60(b) or Martinez, the Court declined to
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reconsider its prior procedural order finding Claims 4, 11, 12, 16 and 17 procedurally
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barred, and declined a renewed request to entertain a Rule 60(b) motion. Thus, the Court
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left its previous judgment intact.
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Moreover, construed as a nonspecific motion for reconsideration, it is untimely.
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Local Rule of Civil Procedure 7.2(g)(2) states that “[a]bsent good cause shown, any
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motion for reconsideration shall be filed no later than fourteen (14) days after the date of
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the filing of the Order that is the subject of the motion.” The order Petitioner challenges
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was filed on March 31, 2016, and Petitioner’s motion was filed on April 28, 2016. The
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motion, therefore, is untimely under Local Rule 7.2(g)(2), and Petitioner has not
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proffered any good cause for his untimely filing.
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A motion for reconsideration may be treated as a Rule 60(b) motion for relief if it
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is filed past the filing deadline for a Rule 59(e) motion. See American Ironworks &
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Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001).
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The moving party under Rule 60(b) is entitled to relief from judgment for the following
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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
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evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the
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judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any
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other reason justifying relief from the operation of the judgment. See Fed.R.Civ.P. 60(b).
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Only the “catch-all provision,” Rule 60(b)(6), might apply to Petitioner’s motion. A
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claim for relief under that provision requires a showing of “extraordinary circumstances”
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that justify reopening a judgment. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)
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(quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). “Such circumstances
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will rarely occur in the habeas context.” Id. at 535. Petitioner’s motion falls short of
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demonstrating the “extraordinary circumstances” necessary to justify relief under Rule
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60(b).
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Even if Petitioner’s Rule 59(e) motion were timely, Petitioner is not entitled to the
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relief he requests. As the Ninth Circuit recently reiterated, altering or amending a
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judgment under Rule 59(e) is “an ‘extraordinary remedy’ usually available only when (1)
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the court committed manifest errors of law or fact, (2) the court is presented with newly
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discovered or previously unavailable evidence, (3) the decision was manifestly unjust, or
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(4) there is an intervening change in the controlling law.” Rishor v. Ferguson, --- F.3d ---
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-, 2016 WL 2610176, at *6 (9th Cir. 2016) (citing Allstate Ins. Co. v. Herron, 634 F.3d
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1101, 1111 (9th Cir. 2011)). “[A] Rule 59(e) motion may not be used to ‘raise arguments
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or present evidence for the first time when they could reasonably have been raised earlier
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in the litigation,’” id. (citing Allstate Ins. Co., 634 F.3d at 1112), nor is it the time “to ask
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the court to rethink what it has already thought through—rightly or wrongly,” United
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States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D.Ariz. 1998) (quotation omitted).
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Furthermore, restating previous arguments does not afford a basis to grant
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reconsideration. Rezzonico, 32 F. Supp.2d at 1116.
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Petitioner seeks amendment of this Court’s order, entered March 31, 2016, to
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include the issuance of a COA. (Doc. 128.) Pursuant to 28 U.S.C. § 2253(c)(2), a COA
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may issue only when a petitioner “has made a substantial showing of the denial of a
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constitutional right.” This showing can be established by demonstrating that “reasonable
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jurists could debate whether (or, for that matter, agree that) the petition should have been
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resolved in a different manner” or that the issues were “adequate to deserve
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encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For
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procedural rulings, a COA will issue only if reasonable jurists could debate whether the
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petition states a valid claim of the denial of a constitutional right and whether the court’s
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procedural ruling was correct. Id.
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This Court has already rejected many of Petitioner’s arguments, and will not
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reconsider them here. (See Doc. 127.) Specifically, Petitioner continues to argue that the
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Court incorrectly characterized his Rule 60(b) claims as disguised second or successive
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claims, and that there was a defect in the integrity of the proceedings which constituted
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an extraordinary circumstance permitting relief from judgment. (See id. at 9–13.) These
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arguments are without merit. They merely reassert arguments already addressed and
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rejected by this Court. The Court will not reconsider them now.
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In addition to reasserting arguments made in the motion below, Petitioner supports
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his motion with an assertion that the courts of appeal in this circuit and others have
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granted a COA on similar claims that a Rule 60(b) motion is in fact a disguised
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successive habeas petition. (Doc. 128 at 4) (citing Jones v. Ryan, 733 F.3d 825, 832 &
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n.3 (9th Cir. 2013), and Clark v. Stephens, 627 Fed.Appx. 305, 307 (5th Cir. 2015)). The
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Court agrees that a COA may be granted on the district court’s denial of a Rule 60(b)
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motion1, see Jones, 733 F.3d at 833. n.3, and that such a claim may implicate “a
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substantial showing of the denial of a constitutional right,” 28 U.S.C. 2253(c)(2). The
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Court disagrees, however, with Petitioner’s assertion that jurists of reason could debate
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whether the Rule 60(b) motion was a disguised and unauthorized second or successive §
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2254 habeas petition. The fact that other courts have found the issue debatable on the
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facts before them does nothing to inform the issue on the facts presented in this case.
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Additionally, the fact that “three judges of the Ninth Circuit remanded this matter for
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Contrary to Petitioner’s assertion, the Ninth Circuit in Jones did not address
whether a COA could issue for a denial of a request for indication whether the district
court would consider a Rule 60(b) motion, rather, the Court addressed whether a COA
should be granted following a district court’s denial of a Rule 60(b) motion filed in
district court in the first instance. Further, the Court in Jones explained that were Jones
appealing a valid Rule 60(b) motion, and not a disguised second or successive habeas
petition, Jones may have had no need for a COA. See Jones, 733 F.3d at 833 n.3.
Regardless, for purposes of this motion, the Court assumes a COA could be granted on a
denial of a request for indication whether the Court would consider a Rule 60(b) motion.
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consideration of the Brady and Napue claims under Rule 60(b),” is not, contrary to
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Petitioner’s assessment, “a clear indication that reasonable jurists could disagree with
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respect to this Court’s denial of relief on the Rule 60(b) Request.” (Doc. 128 at 7)
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(emphasis deleted). The court specifically noted that it expressed “no opinion on the
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merits of Petitioner’s contentions or on whether an evidentiary hearing is necessary.”
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(Doc. 104 at 3.) This Court will not find that the remanding court expressed an opinion
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on the merits of the issue where it directly disavowed offering any such opinion.
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Next, Petitioner argues that a COA should be granted to address the Ninth
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Circuit’s inconsistency in construing Petitioner’s motion to stay the appeal and remand as
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a motion for leave to file in the district court a renewed request for an indication whether
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the District Court would consider a Rule 60(b) motion, while remanding two other
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appeals, Gallegos v. Ryan, Ninth Cir. No. 08-99029, Dkt. 72-1 (Apr. 7, 2016), and
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Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010), for consideration of the merits of the
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underlying Brady claims based on newly-discovered evidence. Respondents correctly
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assert that this argument does not advance Petitioner’s claim because it fails to establish
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that reasonable jurists could debate whether he made a substantial showing of the denial
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of a constitutional right, or that this Court was correct in its procedural ruling.
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Petitioner also argues that Respondents have failed to explain how the Court’s
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materiality determination of the “Fryer Brady Claim” raised in the habeas petition met
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the threshold for a COA (see Doc. 88 at 58-59), but the “Beatty Brady Claim” argued in
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his supplemental brief does not. (Doc. 130 at 6.) This argument, however, ignores the
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procedural posture of Petitioner’s “Beatty Brady Claim.” The Court’s findings regarding
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Petitioner’s renewed request for a Rule 60(b) motion, which addressed whether Petitioner
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was attempting to bring a second or successive claim, did not rest on the materiality of
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the Beatty Brady Claim, but on whether the alleged exculpatory evidence undermined the
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integrity of the Court’s prior decisions.
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Next, Petitioner argues that this Court committed error in determining that
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Petitioner’s ineffective assistance of counsel (“IAC”) claims were insubstantial, by
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failing to aggregate the prejudice to Petitioner with respect to the allegations raised in
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Claims 11 and 12. Petitioner cites no support for his assertion that this Court should
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consider the aggregation of the alleged prejudice for purposes of a Martinez analysis.
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Further, Petitioner did not argue, in either his supplemental brief filed pursuant to
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Martinez or in his reply, that the Court should consider the cumulative prejudice arising
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from counsel’s deficient performance as alleged in Claims 11 and 12. Defendant has a
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duty to show that counsel’s errors had an actual, as opposed to conceivable, effect on the
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outcome of the jury, see Strickland v. Washington, 466 U.S. 668, 693 (1984), and merely
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alleging multiple instances of deficient performance does not obviate the need to
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establish that defendant was actually prejudiced by their cumulative effect.
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Finally, Respondents assert that, by finding that Petitioner failed to establish cause
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under Martinez to excuse the procedural default of Claims 11, 12, and 17, this Court
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necessarily already found that Claims 11, 12, and 17 were not “substantial”—meaning
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that Petitioner failed to establish that “reasonable jurists could debate whether (or, for that
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matter, agree that) the petition should have been resolved in a different manner or that the
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issues presented were adequate to deserve encouragement to proceed further.” See
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Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc) (quotation omitted)
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(acknowledging that Martinez incorporated the standard for issuing a COA in its
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definition of substantiality). Petitioner counters that Respondents’ argument turns the
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objective “reasonable jurist” COA test into a subjective one, and there is no indication,
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apart from the Court’s “conclusory statement in which it denied the COA,” that it
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weighed whether reasonable jurists might debate its determinations of cause and
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prejudice and the merits of the IAC claims. (Doc. 130 at 7.) The fact remains, however,
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that the Court did clearly indicate that it had weighed the matter, objectively, and for the
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same reasons stated in the body of the order, determined that the matter was not debatable
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by reasonable jurists. (Doc. 127 at 50.) While Petitioner might disagree with the Court’s
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assessment, there is no clear error because it is evident from the Order that the Court
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applied the reasonable jurist test to Petitioner’s claims in denying a COA. Petitioner’s
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mere disagreement with this Court’s ruling, without any showing of newly-discovered
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evidence, a change in the law, or clear error, is insufficient to establish that a COA should
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issue on these claims.
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Accordingly,
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IT IS ORDERED Petitioner’s Motion to Alter or Amend Judgment Pursuant to
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Rule 59(e) (Doc. 128) is DENIED.
Dated this 16th day of June, 2016.
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Honorable Roslyn O. Silver
Senior United States District Judge
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