Butts v. United States of America

Filing 22

ORDER - that Petitioner's motion (Doc. 21) is denied. Signed by Judge David G Campbell on 6/20/2011. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CR05-1127 PHX DGC
CV10-2104-PHX-DGC

Paul Richard Butts,
Plaintiff/Respondent,

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ORDER

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vs.

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United States of America,
Defendant/Movant.

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On May 20, 2011, pro se Petitioner Paul Richard Butts filed an objection to this

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Court’s April 29 order denying habeas relief (Doc. 19). Doc. 21. The Court will treat the

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filing as a motion for reconsideration. In re 1982 Sanger, 738 F.2d 1043, 1046 (9th Cir.

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1984) (“The moving party’s label for its motion is not controlling. Rather, the court will

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construe it, however styled, to be the type proper for relief requested.”).

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Motions for reconsideration are disfavored and should be granted only in rare

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circumstances. See Ross v. Arpaio, No. CV 05-4177-PHX-MHM (ECV), 2008 WL

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1776502, at *2 (D. Ariz. Apr. 15, 2008). A motion for reconsideration will be denied

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“absent a showing of manifest error or a showing of new facts or legal authority that

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could not have been brought to [the Court’s] attention earlier with reasonable diligence.”

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LRCiv 7.2(g)(1).

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reconsideration. See Ross, 2008 WL 1776502, at *2. Nor should reconsideration be used

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to make new arguments or to ask the Court to rethink its analysis. Id.; see Northwest

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).

Mere disagreement with an order is an insufficient basis for

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Finally, “[a]bsent good cause shown, any motion for reconsideration shall be filed no

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later than fourteen (14) days after the date of the filing of the Order that is the subject of

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the motion.” LRCiv. 7.2(g)(2). Where service of the order was achieved by mail, a court

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adds three (3) days to this deadline, Fed. R. Civ. P. 6(d), for a total of 17 days.

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Petitioner’s motion is untimely under LRCiv. 7.2(g)(2), having been filed 21 days

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after the order it seeks to reconsider and having failed to show good cause for the late

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filing. Moreover, after considering all of the arguments made in the motion, the Court

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concludes the motion fails to show manifest error and fails to show new facts or

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authority. The motion will therefore be denied on both grounds. Although the Court

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need not discuss in detail each argument made by the motion, the Court briefly will

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address three of the arguments.

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First, Petitioner argues that “the District Court seems to be dismissing all his

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claims without reading his motions and without cause.” Doc. 21 at 1. Petitioner appears

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to excerpt the following statement from the Court’s order as a basis for reaching this

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conclusion: “Petitioner filed a motion requesting a COA, but does not make specific

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objections to the R&R’s recommendation.” Id. This excerpt relates to the R&R’s

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recommendation regarding the certificate of appealability (“COA”), not to the

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recommendations on the substantive merits. The Court reviewed the substantive merits

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de novo. Doc. 19 at 2:8-10 (“Petitioner objects that the R&R’s findings were frivolous

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and failed to respond to his arguments. . . . Although the objection is somewhat general,

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the Court will engage in de novo review of the R&R.”).

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Second, Petitioner argues that this Court erred in deciding that Petitioner’s factual

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basis for the ineffective assistance of counsel claim was a citation from the trial court

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excerpted without context or reference to the record. Doc. 21 at 2. Petitioner urges that

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the excerpt was from page 92, line 6, and was made during closing argument in the

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suppression hearing. Id. Petitioner misunderstands the Court’s decision. The flaw in

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Petitioner’s ineffective assistance claim was not the technical failure to cite to a transcript

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page: the flaw is that the trial court’s statement “You didn’t even put on any evidence”
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does not necessarily show a viable ineffective assistance of counsel claim. The trial

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court’s statement was cited by Petitioner without context or reference to the record. The

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transcript clearly shows the judge was not berating Petitioner’s counsel for failing to put

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on evidence, but rather was noting that counsel introduced no evidence to support the

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general argument that Petitioner’s Fourth Amendment rights were violated such that the

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exclusionary rule was triggered. Doc. 11-2 at 90. Petitioner does not show that such

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evidence existed and that his attorney failed to present it. In fact, the evidence of which

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Petitioner complains – i.e., evidence of prosecutorial misconduct by virtue of the

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prosecutor telling an agent to execute a warrant one day later than the date on the warrant

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– was introduced by the prosecution (Doc. 11-2 at 25-26) and was therefore before the

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trial judge. Petitioner clearly cited the trial court’s statement without context or reference

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to the record.

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Third, in urging reconsideration of the denial of a COA, Petitioner argues that

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“[r]easonable [j]urists could differ as to whether counsel was ineffective by refusing to

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argue at any point or in any motion the ob[v]ious abuses of power and misconduct of Ms.

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Sexton.” Doc. 21 at 2. This argument does not present new facts or law, and Petitioner

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has failed to show that the Court’s denial of a COA was manifest error in light of the

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record and the arguments made by Petitioner’s motions.

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IT IS ORDERED that Petitioner’s motion (Doc. 21) is denied.

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Dated this 20th day of June, 2011.

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