Laliberte v. Morris et al

Filing 29

ORDER that the motion for reconsideration 27 is granted in part and denied in part as specified above. Signed by Judge James A Teilborg on 5/26/09. (Note: See Order for full details)(KMG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jason L. Laliberte, Petitioner, vs. Charles L. Ryan, et al., Respondents.

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No. CV 08-613-PHX-JAT ORDER

Pending before the Court is the Respondent's Motion for Reconsideration (Doc. #27). I. Introduction

The Court entered an Order denying Laliberte's Amended Petition for Writ of Habeas Corpus ("Petition") and dismissing this case with prejudice on April 8, 2009. Judgment was entered that same day. Respondents filed a Motion for Reconsideration on April 16, 2009. II. Legal Standard and Analysis

Reconsideration of a final order in the habeas context is only appropriate if: (1) the court is presented with newly discovered, previously unavailable, evidence; (2) the court committed a clear error of law or the initial decision was manifestly unjust; or (3) there was an intervening change in controlling law. Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004) (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). Respondents seek reconsideration of the portion of the April 8, 2009 Order ("Order") that fails to adopt the Magistrate Judge's recommendation on Amended Ground Three and

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Amended Ground Four. Specifically, this Court disagreed with the Magistrate Judge's finding that Petitioner did not sufficiently exhaust Amended Ground Three and Amended Ground Four in state court. Respondents disagree with this point because they argue this Court's reliance on Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005), was in error. Doc. #27 at 7-8. Further, Respondents argue that this Court should rely on Baldwin v. Reese, 541 U.S. 27 (2004), and Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2005) to reach a different conclusion. III. Baldwin v. Reese and Castillo v. McFadden

As discussed above, Respondents argue that this Court's reliance on Insyxiengmay to the exclusion of Baldwin and Castillo is misplaced and that this Court's finding directly contradicts these cases. Doc. #27 at 7, 9. In Baldwin, the Supreme Court found that a petitioner does not fairly present a federal claim "when an appellate judge can discover that claim only by reading lower court opinions." 541 U.S. at 31 (emphasis added). The present case is factually distinguishable from Baldwin. In this case, in the body of his petition for review of the trial court's denial of his petition-for-post-conviction-relief (hereinafter "petition for review") Petitioner argued that the trial court erred in dismissing his petition for post conviction relief without an evidentiary hearing on his claim of ineffective assistance of counsel. Doc. #8-3 at 34. Further, he allegedly attached as an appendix to his petition for review his reply to the State's response to his petition-for-post-conviction-relief.1 Thus, here, the Arizona Court of Appeals did not have to read through lower court records to discover the claim. Because the Arizona Court
1

The Court states that the reply was "allegedly" attached to the petition for review, because neither party has actually filed a complete copy of the petition for review with this Court. At Doc. #8, Petitioner attached as exhibits his petition for review without any appendices and the Court of Appeals decision denying review. Doc. #8-3 at 33-38. At Doc. #15, Respondents filed the state court "record" but did not include the petition for review at all or the Court of Appeals decision denying relief. Both because it was Respondents' obligation to file the record, and because Respondents have not disputed Petitioner's claim that he attached this reply as an appendix to his petition for review, the Court has accepted this allegation as true for purposes of this Order. -2-

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of Appeals did not have to read further than Petitioner's petition for review and the appendix, the April 8, 2009 Order is not inconsistent with Baldwin. Similarly, the April 8, 2009 Order is not in inconsistent with Castillo. In Castillo, the petitioner argued that his federal claim was fairly presented in various motions before the trial court. 399 F.3d at 999-1000. Like in Baldwin, to discover this claim the Arizona Court of Appeals would have been "required to comb the trial court's decision to discover Castillo's federal constitutional issue." Id. at 1000. Therefore, the Castillo court relied on Baldwin and found the petitioner did not fairly present his claims. Id. IV. Insyxiengmay v. Morgan

The Ninth Circuit Court of Appeals case Insyxiengmay v. Morgan is factually similar to the present case. 403 F.3d 657 (9th Cir. 2005). In Insyxiengmay, the petitioner filed a motion for review with the Washington Supreme Court and with that motion he attached a copy of his second personal restraint petition ("PRP") as an appendix. Id. at 668. In the PRP, the petitioner discussed the three claims the state contended were not exhausted. Id. The Ninth Circuit Court of Appeals found that in this appendix the petitioner presented sufficient arguments, citations, and relevant parts of the record to support these three claims. Id. at 668-69. The state had argued that the three claims did not appear in the body of the motion, and thus Washington law prohibited the Washington Supreme Court from considering them. Id. at 668. However, the Court of Appeals found that Washington law did not prohibit the incorporation of the appendix, and accordingly found the petitioner exhausted these claims in state court. Id. at 668-69. Similarly, in Farmer v. Baldwin, Slip. Op. at 5036 (9th Cir. April 29, 2009), the Ninth Circuit Court of Appeals certified a question to the Oregon Supreme Court asking whether, under Oregon law, an appellant can incorporate by reference his brief before the Oregon Court of Appeals to present a claim to the Oregon Supreme Court in a petition for review. The Oregon Supreme Court answered this question by stating such incorporation by reference was sufficient to present the claim to the Oregon Supreme Court under Oregon law. Id. at 5036-37. -3-

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As Insyxiengmay and Farmer make clear, Respondents are correct that whether an appendix presents an issue to a state appellate court is a question of state law. As discussed above, in this case, Petitioner attached a copy of his reply in support of his petition-for-postconviction-relief as an appendix to his petitioner for review. See Doc. #8-3 at 35. That reply/appendix is where Petitioner claims he exhausted Amended Ground Three and Amended Ground Four before the Arizona Court of Appeals. Also, as indicated above, he made a claim of ineffective assistance of counsel in the body of the petition for review. Doc. #8-3 at 34. In this case, Insyxiengmay, and Farmer the petitioners attached the requisite arguments and citations to exhaust their claims in state court as appendices to their petitions for review. Thus, unless state law expressly forbids the incorporation of the appendix, the Ninth Circuit Court of Appeals has held attaching arguments in an appendix is sufficient for exhaustion purposes. Accordingly, the question here is whether Arizona law differs from Washington law and Oregon law with respect to expressly forbidding the incorporation of the appendix in a petition for review filed pursuant to Arizona Rule of Criminal Procedure 32.9(c). V. Arizona Law

Respondents argue that under Arizona law issues not raised and argued in the body of a brief are waived. (Doc. #27 at 8.) Respondents correctly recount that the Arizona courts have repeatedly held, in cases on direct review, that an appellant waives issues raised in only an appendix. See State v. Kemp, 912 P.2d 1281, 1286 (Ariz. 1996); State v. Walden, 905 P.2d 974, 984 (Ariz. 1995) (overruled on other grounds); State v. Atwood, 832 P.2d 593, 675-76 (Ariz. 1992). For example, an opening brief for appellate review must state the argument in the body of the brief and issues argued solely in appendices are procedurally defaulted. State v. Bolton, 896 P.2d 830, 838 (Ariz. 1995). In Walden, the appellant listed nineteen headings in the brief and placed the arguments for these headings in the appendix; the court struck the text of the appendix. 905 P.2d at 984 ("A list of issues in the brief is not adequate. Nor may the argument be in the appendix."). These cases found that Arizona Rule -4-

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of Criminal Procedure 31.13(c)(4), which limits the contents of an appendix to pertinent authorities and extended quotations, prohibits attaching additional arguments in the appendices. See e.g., Bolton, 896 P.2d at 839. If the same rules that govern direct appeals also govern petitions for review of denials of petitions-for-post-conviction-relief, then this Court agrees with Respondents that Arizona law forbids the incorporation of an appendix containing Petitioner's trial court reply; thus Petitioner would not have exhausted Amended Ground Three and Amended Ground Four in state court.2 Looking specifically at cases involving petitions for review of denials of petitions-forpost-conviction-relief, no cases directly address appendices. C.f. State v. French, 7 P.3d 128, 131 ¶ 9 (Ariz. App. 2000), disapproved on other grounds by Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (court would not address claims raised in petition for review of a denial of a petition-for-post-conviction-relief wherein petitioner simply referred to trial memoranda filed below); see also State v. Moore, 611 P.2d 115, 116 (Ariz. App. 1980) (a motion for rehearing before the trial court does not comply with Arizona Rule of Criminal Procedure 32.9(a) when the petitioner merely incorporates by reference his prior filings); see also Pelligrini v. Bartos, 2007 WL 2526977, *9 (D. Ariz. 2007). Respondents have not cited and this Court has not located any cases that specifically address whether the Arizona appellate courts would treat the use of appendices differently in petitions for review of trial court decisions on postconviction-relief-petitions than the use of appendices in direct appeals. The Court notes that the content of briefs in direct appeals in criminal cases is governed by Arizona Rule of Criminal Procedure 31.13. The contents of a petition for review of the denial of a petition for post-conviction relief is governed by Arizona Rule of Criminal Procedure 32.9. Thus, the cases cited by Respondents interpreting Rule 31.13 would not necessarily control interpretation of Rule 32.9.

It is undisputed that the substance of Amended Ground Three and Amended Ground Four are briefed in the reply attached as an appendix to the petition for review. See Doc. #83 at 26. -5-

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However, the policy reason Arizona courts advance for disallowing argument in the appendices is that an appendix may not be used to circumvent the page limitations. See State Walden, 905 at 984 ("Opening briefs in capital cases are limited to eighty pages. Walden filed a 103-page opening brief, which we rejected. Walden's second opening brief was within the eighty-page limit, but he attached much of the excised portion of the original brief as an `appendix.' This is improper under our rules.") (internal citations omitted). This policy would be equally important in petitions for review as it is in direct appeals. Thus, the Court sees no reason why the Arizona courts would permit an appendix to be used to circumvent a page limit in a petition for review of a petition-for-post-conviction-relief when the Arizona courts do not permit such a tactic on direct review. See, e.g., Kemp, 912 P.2d at 1286 (noting that 12 issues were raised in an appendix and striking the text of the appendix on those 12 issues because argument must be made in the body of the brief).3 Further, Arizona Rule of Criminal Procedure 32.9(c)(1)(ii)(iii) & (iv), supports this conclusion; stating that the 20 page petition for review must contain the issues presented on appeal, the facts material to those issues, and the reasons why the petition should be granted. Here, Petitioner listed the issue on appeal -- ineffective assistance of counsel -- in his petition for review, but he did not list any facts material to that issue. He then made his entire argument in an appendix. Having reviewed the Arizona cases, the Court finds no basis to treat the "appendix" any differently in petitions for review than in direct appeals. Thus, the Court agrees with Respondents that under Arizona law Petitioner's use of the appendix was insufficient to present Amended Ground Three and Amended Ground Four to the Arizona Court of Appeals.4

The Court notes that in this case, Petitioner's petition for review added to his reply attached to his appendix would have been 11 pages; less that the 20 pages permitted by Arizona Rule of Criminal Procedure32.9(c)(1). Thus, Petitioner in this case did not violate this policy. The Court notes that in Respondents' motion for reconsideration, Respondents also argue that Amended Ground Four, even if "raised" in the appendix of the petition for review, -64

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VI.

CONCLUSION

For this Court to grant reconsideration in this case, the Court must find a clear error of law that requires correction. Nunes, 375 F.3d at 807-08. As discussed above, the Court has determined that under Arizona state law, Petitioner failed to present Amended Ground Three and Amended Ground Four to the Arizona Court of Appeals, and therefore he failed to exhaust those claims. Thus, reconsideration will be granted in part. Specifically, the Court still finds that Castillo is not controlling, and, thus, to the extent the Report and Recommendation relied on Castillo to determine Petitioner's claims were not exhausted, that conclusion is still modified. However, the Report and Recommendation's ultimate

conclusion, that Amended Ground Three and Amended Ground Four were not exhausted, is adopted. Additionally, the Report and Recommendation's conclusion that those claims are now procedurally defaulted is also adopted. Doc. #21 at 14. Finally, the Report and Recommendation's conclusion that Petitioner cannot show cause and prejudice to excuse his procedural default of these claims is also adopted. Id. Alternatively, the Court still finds the analysis in the April 8, 2009 Order to be correct in that, even if Amended Ground Three and Amended Ground Four had been exhausted, or if Petitioner had shown cause and prejudice to excuse his procedural default, relief on the merits of those claims is still denied. /// /// /// /// /// /// was not properly presented to the Arizona courts because it should have been raised in Petitioner's direct appeal of his conviction and not in his petition-for-post-conviction-relief. Because Amended Ground Four is a theory of ineffective assistance of counsel, and Respondents have cited nothing to support an argument that Petitioner could not raise a theory of ineffective assistance of counsel for the first time in a post-conviction-relief petition, this Court has not relied on this argument as a basis for denying relief. -7-

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Accordingly, IT IS ORDERED that the motion for reconsideration (Doc. #27) is granted in part and denied in part as specified above. DATED this 26th day of May, 2009.

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