Martinez, et al v. Ryan, et al

Filing 131

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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ernesto Salgado Martinez, Petitioner, 10 11 v. 12 No. CV-05-01561-PHX-ROS DEATH PENALTY CASE Charles L. Ryan, et al., 13 ORDER Respondents. 14 Pending before the Court is Petitioner’s motion to alter or amend the Court’s 15 order, entered March 31, 2016, pursuant to Rule 59(e) of the Federal Rules of Civil 16 Procedure. (Doc. 128.) Petitioner argues that the Court should amend its order to include 17 the issuance of a certificate of appealability (“COA”) with respect to Petitioner’s 18 Renewed Request for Indication Whether the Court Would Consider a Rule 60(b) 19 Motion, and also with respect to the Court’s finding that Petitioner failed to establish 20 cause and prejudice, in the form of state post-conviction relief (“PCR”) ineffectiveness 21 under Martinez v. Ryan, 132 S. Ct. 1309 (2012), to overcome the procedural default of 22 Claims 11, 12 and 17 in Petitioner’s § 2254 petition. For the reasons set forth below, the 23 motion will be denied. 24 DISCUSSION 25 As an initial matter, Respondents urge this Court to find Petitioner’s motion, filed 26 on April 28, 2016, untimely. A motion filed pursuant to Rule 59(e) of the Federal Rules 27 of Civil Procedure must be filed “no later than 28 days after the entry of the judgment.” 28 Respondents assert that the relevant date of entry of judgment in this case is March 21, 1 2008, when the Court denied Petitioner’s amended petition for writ of habeas corpus, and 2 entered judgment for Respondents. (See Docs. 88 and 89.) Respondents further assert that 3 the Court’s order, filed on March 31, 2016, did not affect or reopen the judgment entered 4 March 21, 2008. The Court agrees. 5 Petitioner cannot bring his motion pursuant to Rule 59(e) because this Court’s 6 March 31, 2016 order was not a final judgment or an appealable interlocutory order. See 7 Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) (noting that 8 Rule 59(e) only applies to final judgments and appealable interlocutory orders). While 9 Petitioner asserts that the Ninth Circuit’s remand order clearly contemplated that habeas 10 relief could be granted within the context of Rule 60(b) or Martinez, the Court declined to 11 reconsider its prior procedural order finding Claims 4, 11, 12, 16 and 17 procedurally 12 barred, and declined a renewed request to entertain a Rule 60(b) motion. Thus, the Court 13 left its previous judgment intact. 14 Moreover, construed as a nonspecific motion for reconsideration, it is untimely. 15 Local Rule of Civil Procedure 7.2(g)(2) states that “[a]bsent good cause shown, any 16 motion for reconsideration shall be filed no later than fourteen (14) days after the date of 17 the filing of the Order that is the subject of the motion.” The order Petitioner challenges 18 was filed on March 31, 2016, and Petitioner’s motion was filed on April 28, 2016. The 19 motion, therefore, is untimely under Local Rule 7.2(g)(2), and Petitioner has not 20 proffered any good cause for his untimely filing. 21 A motion for reconsideration may be treated as a Rule 60(b) motion for relief if it 22 is filed past the filing deadline for a Rule 59(e) motion. See American Ironworks & 23 Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). 24 The moving party under Rule 60(b) is entitled to relief from judgment for the following 25 reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 26 evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the 27 judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any 28 other reason justifying relief from the operation of the judgment. See Fed.R.Civ.P. 60(b). -2- 1 Only the “catch-all provision,” Rule 60(b)(6), might apply to Petitioner’s motion. A 2 claim for relief under that provision requires a showing of “extraordinary circumstances” 3 that justify reopening a judgment. See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) 4 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). “Such circumstances 5 will rarely occur in the habeas context.” Id. at 535. Petitioner’s motion falls short of 6 demonstrating the “extraordinary circumstances” necessary to justify relief under Rule 7 60(b). 8 Even if Petitioner’s Rule 59(e) motion were timely, Petitioner is not entitled to the 9 relief he requests. As the Ninth Circuit recently reiterated, altering or amending a 10 judgment under Rule 59(e) is “an ‘extraordinary remedy’ usually available only when (1) 11 the court committed manifest errors of law or fact, (2) the court is presented with newly 12 discovered or previously unavailable evidence, (3) the decision was manifestly unjust, or 13 (4) there is an intervening change in the controlling law.” Rishor v. Ferguson, --- F.3d --- 14 -, 2016 WL 2610176, at *6 (9th Cir. 2016) (citing Allstate Ins. Co. v. Herron, 634 F.3d 15 1101, 1111 (9th Cir. 2011)). “[A] Rule 59(e) motion may not be used to ‘raise arguments 16 or present evidence for the first time when they could reasonably have been raised earlier 17 in the litigation,’” id. (citing Allstate Ins. Co., 634 F.3d at 1112), nor is it the time “to ask 18 the court to rethink what it has already thought through—rightly or wrongly,” United 19 States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D.Ariz. 1998) (quotation omitted). 20 Furthermore, restating previous arguments does not afford a basis to grant 21 reconsideration. Rezzonico, 32 F. Supp.2d at 1116. 22 Petitioner seeks amendment of this Court’s order, entered March 31, 2016, to 23 include the issuance of a COA. (Doc. 128.) Pursuant to 28 U.S.C. § 2253(c)(2), a COA 24 may issue only when a petitioner “has made a substantial showing of the denial of a 25 constitutional right.” This showing can be established by demonstrating that “reasonable 26 jurists could debate whether (or, for that matter, agree that) the petition should have been 27 resolved in a different manner” or that the issues were “adequate to deserve 28 encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For -3- 1 procedural rulings, a COA will issue only if reasonable jurists could debate whether the 2 petition states a valid claim of the denial of a constitutional right and whether the court’s 3 procedural ruling was correct. Id. 4 This Court has already rejected many of Petitioner’s arguments, and will not 5 reconsider them here. (See Doc. 127.) Specifically, Petitioner continues to argue that the 6 Court incorrectly characterized his Rule 60(b) claims as disguised second or successive 7 claims, and that there was a defect in the integrity of the proceedings which constituted 8 an extraordinary circumstance permitting relief from judgment. (See id. at 9–13.) These 9 arguments are without merit. They merely reassert arguments already addressed and 10 rejected by this Court. The Court will not reconsider them now. 11 In addition to reasserting arguments made in the motion below, Petitioner supports 12 his motion with an assertion that the courts of appeal in this circuit and others have 13 granted a COA on similar claims that a Rule 60(b) motion is in fact a disguised 14 successive habeas petition. (Doc. 128 at 4) (citing Jones v. Ryan, 733 F.3d 825, 832 & 15 n.3 (9th Cir. 2013), and Clark v. Stephens, 627 Fed.Appx. 305, 307 (5th Cir. 2015)). The 16 Court agrees that a COA may be granted on the district court’s denial of a Rule 60(b) 17 motion1, see Jones, 733 F.3d at 833. n.3, and that such a claim may implicate “a 18 substantial showing of the denial of a constitutional right,” 28 U.S.C. 2253(c)(2). The 19 Court disagrees, however, with Petitioner’s assertion that jurists of reason could debate 20 whether the Rule 60(b) motion was a disguised and unauthorized second or successive § 21 2254 habeas petition. The fact that other courts have found the issue debatable on the 22 facts before them does nothing to inform the issue on the facts presented in this case. 23 Additionally, the fact that “three judges of the Ninth Circuit remanded this matter for 24 1 25 26 27 28 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. -4- 1 consideration of the Brady and Napue claims under Rule 60(b),” is not, contrary to 2 Petitioner’s assessment, “a clear indication that reasonable jurists could disagree with 3 respect to this Court’s denial of relief on the Rule 60(b) Request.” (Doc. 128 at 7) 4 (emphasis deleted). The court specifically noted that it expressed “no opinion on the 5 merits of Petitioner’s contentions or on whether an evidentiary hearing is necessary.” 6 (Doc. 104 at 3.) This Court will not find that the remanding court expressed an opinion 7 on the merits of the issue where it directly disavowed offering any such opinion. 8 Next, Petitioner argues that a COA should be granted to address the Ninth 9 Circuit’s inconsistency in construing Petitioner’s motion to stay the appeal and remand as 10 a motion for leave to file in the district court a renewed request for an indication whether 11 the District Court would consider a Rule 60(b) motion, while remanding two other 12 appeals, Gallegos v. Ryan, Ninth Cir. No. 08-99029, Dkt. 72-1 (Apr. 7, 2016), and 13 Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010), for consideration of the merits of the 14 underlying Brady claims based on newly-discovered evidence. Respondents correctly 15 assert that this argument does not advance Petitioner’s claim because it fails to establish 16 that reasonable jurists could debate whether he made a substantial showing of the denial 17 of a constitutional right, or that this Court was correct in its procedural ruling. 18 Petitioner also argues that Respondents have failed to explain how the Court’s 19 materiality determination of the “Fryer Brady Claim” raised in the habeas petition met 20 the threshold for a COA (see Doc. 88 at 58-59), but the “Beatty Brady Claim” argued in 21 his supplemental brief does not. (Doc. 130 at 6.) This argument, however, ignores the 22 procedural posture of Petitioner’s “Beatty Brady Claim.” The Court’s findings regarding 23 Petitioner’s renewed request for a Rule 60(b) motion, which addressed whether Petitioner 24 was attempting to bring a second or successive claim, did not rest on the materiality of 25 the Beatty Brady Claim, but on whether the alleged exculpatory evidence undermined the 26 integrity of the Court’s prior decisions. 27 Next, Petitioner argues that this Court committed error in determining that 28 Petitioner’s ineffective assistance of counsel (“IAC”) claims were insubstantial, by -5- 1 failing to aggregate the prejudice to Petitioner with respect to the allegations raised in 2 Claims 11 and 12. Petitioner cites no support for his assertion that this Court should 3 consider the aggregation of the alleged prejudice for purposes of a Martinez analysis. 4 Further, Petitioner did not argue, in either his supplemental brief filed pursuant to 5 Martinez or in his reply, that the Court should consider the cumulative prejudice arising 6 from counsel’s deficient performance as alleged in Claims 11 and 12. Defendant has a 7 duty to show that counsel’s errors had an actual, as opposed to conceivable, effect on the 8 outcome of the jury, see Strickland v. Washington, 466 U.S. 668, 693 (1984), and merely 9 alleging multiple instances of deficient performance does not obviate the need to 10 establish that defendant was actually prejudiced by their cumulative effect. 11 Finally, Respondents assert that, by finding that Petitioner failed to establish cause 12 under Martinez to excuse the procedural default of Claims 11, 12, and 17, this Court 13 necessarily already found that Claims 11, 12, and 17 were not “substantial”—meaning 14 that Petitioner failed to establish that “reasonable jurists could debate whether (or, for that 15 matter, agree that) the petition should have been resolved in a different manner or that the 16 issues presented were adequate to deserve encouragement to proceed further.” See 17 Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc) (quotation omitted) 18 (acknowledging that Martinez incorporated the standard for issuing a COA in its 19 definition of substantiality). Petitioner counters that Respondents’ argument turns the 20 objective “reasonable jurist” COA test into a subjective one, and there is no indication, 21 apart from the Court’s “conclusory statement in which it denied the COA,” that it 22 weighed whether reasonable jurists might debate its determinations of cause and 23 prejudice and the merits of the IAC claims. (Doc. 130 at 7.) The fact remains, however, 24 that the Court did clearly indicate that it had weighed the matter, objectively, and for the 25 same reasons stated in the body of the order, determined that the matter was not debatable 26 by reasonable jurists. (Doc. 127 at 50.) While Petitioner might disagree with the Court’s 27 assessment, there is no clear error because it is evident from the Order that the Court 28 applied the reasonable jurist test to Petitioner’s claims in denying a COA. Petitioner’s -6- 1 mere disagreement with this Court’s ruling, without any showing of newly-discovered 2 evidence, a change in the law, or clear error, is insufficient to establish that a COA should 3 issue on these claims. 4 Accordingly, 5 IT IS ORDERED Petitioner’s Motion to Alter or Amend Judgment Pursuant to 6 7 Rule 59(e) (Doc. 128) is DENIED. Dated this 16th day of June, 2016. 8 9 10 Honorable Roslyn O. Silver Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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