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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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CR05-1127 PHX DGC CV10-2104-PHX-DGC Paul Richard Butts, Plaintiff/Respondent, 10 ORDER 11 vs. 12 United States of America, Defendant/Movant. 13 14 15 On May 20, 2011, pro se Petitioner Paul Richard Butts filed an objection to this 16 Court’s April 29 order denying habeas relief (Doc. 19). Doc. 21. The Court will treat the 17 filing as a motion for reconsideration. In re 1982 Sanger, 738 F.2d 1043, 1046 (9th Cir. 18 1984) (“The moving party’s label for its motion is not controlling. Rather, the court will 19 construe it, however styled, to be the type proper for relief requested.”). 20 Motions for reconsideration are disfavored and should be granted only in rare 21 circumstances. See Ross v. Arpaio, No. CV 05-4177-PHX-MHM (ECV), 2008 WL 22 1776502, at *2 (D. Ariz. Apr. 15, 2008). A motion for reconsideration will be denied 23 “absent a showing of manifest error or a showing of new facts or legal authority that 24 could not have been brought to [the Court’s] attention earlier with reasonable diligence.” 25 LRCiv 7.2(g)(1). 26 reconsideration. See Ross, 2008 WL 1776502, at *2. Nor should reconsideration be used 27 to make new arguments or to ask the Court to rethink its analysis. Id.; see Northwest 28 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     1 Finally, “[a]bsent good cause shown, any motion for reconsideration shall be filed no 2 later than fourteen (14) days after the date of the filing of the Order that is the subject of 3 the motion.” LRCiv. 7.2(g)(2). Where service of the order was achieved by mail, a court 4 adds three (3) days to this deadline, Fed. R. Civ. P. 6(d), for a total of 17 days. 5 Petitioner’s motion is untimely under LRCiv. 7.2(g)(2), having been filed 21 days 6 after the order it seeks to reconsider and having failed to show good cause for the late 7 filing. Moreover, after considering all of the arguments made in the motion, the Court 8 concludes the motion fails to show manifest error and fails to show new facts or 9 authority. The motion will therefore be denied on both grounds. Although the Court 10 need not discuss in detail each argument made by the motion, the Court briefly will 11 address three of the arguments. 12 First, Petitioner argues that “the District Court seems to be dismissing all his 13 claims without reading his motions and without cause.” Doc. 21 at 1. Petitioner appears 14 to excerpt the following statement from the Court’s order as a basis for reaching this 15 conclusion: “Petitioner filed a motion requesting a COA, but does not make specific 16 objections to the R&R’s recommendation.” Id. This excerpt relates to the R&R’s 17 recommendation regarding the certificate of appealability (“COA”), not to the 18 recommendations on the substantive merits. The Court reviewed the substantive merits 19 de novo. Doc. 19 at 2:8-10 (“Petitioner objects that the R&R’s findings were frivolous 20 and failed to respond to his arguments. . . . Although the objection is somewhat general, 21 the Court will engage in de novo review of the R&R.”). 22 Second, Petitioner argues that this Court erred in deciding that Petitioner’s factual 23 basis for the ineffective assistance of counsel claim was a citation from the trial court 24 excerpted without context or reference to the record. Doc. 21 at 2. Petitioner urges that 25 the excerpt was from page 92, line 6, and was made during closing argument in the 26 suppression hearing. Id. Petitioner misunderstands the Court’s decision. The flaw in 27 Petitioner’s ineffective assistance claim was not the technical failure to cite to a transcript 28 page: the flaw is that the trial court’s statement “You didn’t even put on any evidence” ‐ 2 ‐      1 does not necessarily show a viable ineffective assistance of counsel claim. The trial 2 court’s statement was cited by Petitioner without context or reference to the record. The 3 transcript clearly shows the judge was not berating Petitioner’s counsel for failing to put 4 on evidence, but rather was noting that counsel introduced no evidence to support the 5 general argument that Petitioner’s Fourth Amendment rights were violated such that the 6 exclusionary rule was triggered. Doc. 11-2 at 90. Petitioner does not show that such 7 evidence existed and that his attorney failed to present it. In fact, the evidence of which 8 Petitioner complains – i.e., evidence of prosecutorial misconduct by virtue of the 9 prosecutor telling an agent to execute a warrant one day later than the date on the warrant 10 – was introduced by the prosecution (Doc. 11-2 at 25-26) and was therefore before the 11 trial judge. Petitioner clearly cited the trial court’s statement without context or reference 12 to the record. 13 Third, in urging reconsideration of the denial of a COA, Petitioner argues that 14 “[r]easonable [j]urists could differ as to whether counsel was ineffective by refusing to 15 argue at any point or in any motion the ob[v]ious abuses of power and misconduct of Ms. 16 Sexton.” Doc. 21 at 2. This argument does not present new facts or law, and Petitioner 17 has failed to show that the Court’s denial of a COA was manifest error in light of the 18 record and the arguments made by Petitioner’s motions. 19 IT IS ORDERED that Petitioner’s motion (Doc. 21) is denied. 20 Dated this 20th day of June, 2011. 21 22 23 24 25 26 27 28 ‐ 3 ‐ 

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