Alisic v. United States of America

Filing 22

ORDER denying 20 Plaintiff's Motion to Reopen Judgment; denying 21 Plaintiff's Motion to Amend. Signed by Judge David G Campbell on 4/23/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adnan Alisic,

No. CV11-0063-PHX-DGC
Plaintiff,

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v.

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ORDER

United States of America,

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Defendant.

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On February 3, 2012, the Court entered an order adopting Magistrate Judge

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Aspey’s report and recommendation (“R&R”) that Plaintiff Adnan Alisic’s amended

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motion to vacate, set aside, or correct his sentence (Doc. 4) be denied. Doc. 16. On

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February 27, 2012, Alisic filed a motion for reconsideration (Doc. 18), which the court

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denied on March 2, 2012 (Doc. 19). Alisic has now filed a motion to reopen judgment,

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which the Court construes as a second motion for reconsideration. Doc. 20. Alisic has

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also filed a motion to amend. Doc. 21. The Court will deny both motions.

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In the second motion for reconsideration, Alisic claims that he was prejudiced by

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counsel’s advice to take the case to trial under the duress defense because counsel did not

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explain the elements of duress and did not inform Alisic of the statutory maximum

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sentence. Doc. 20, at 2. Alisic claims that he would have signed a plea agreement had he

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been properly advised about the duress defense. Id. at 3. Alisic previously raised this

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argument in his amended § 2255 motion (Doc. 4, at 11-12) and in his first motion for

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reconsideration (Doc. 18, at 4-6).

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Motions for reconsideration should not ask the Court to rethink its analysis. See

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Northwest Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir.

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1988); United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998). Courts in

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this District have identified four circumstances where a motion for reconsideration will

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be granted: (1) the moving party has discovered material differences in fact or law from

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those presented to the Court at the time of its initial decision, and the party could not

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previously have known of the differences through the exercise of reasonable diligence,

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(2) material factual events have occurred since the Court’s initial decision, (3) there has

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been a material change in the law since the Court’s initial decision, and (4) the movant

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makes a convincing showing that the Court failed to consider material facts that were

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presented to the Court at the time of its initial decision. See Motorola, Inc. v. J.B.

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Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003); Rice v. Lender

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Servs. Direct, Inc., No. CV-06-2727-PHX-DGC, 2007 WL 2287873, at *1 (D. Ariz.

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Aug. 8, 2007). Alisic presents no newly discovered evidence or new factual events;

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rather, he acknowledges that the claims asserted in his second motion for reconsideration

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“arise from the core facts [raised in his previous motions] that are not different in time

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and type.” Doc. 20, at 5. He has not presented an intervening change in controlling law,

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nor has he shown that the Court failed to consider material facts presented at the time of

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its initial decision. See Doc. 16, at 12 (counsel’s alleged failure to sufficiently explain the

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duress defense and the penalty of conviction after trial was not a proper basis for Alisic’s

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objection to the R&R when raised for the first time in his objections); see also Doc. 19,

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at 1 (Alisic has not cited new law or facts that occurred after the Court’s denial of his

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§ 2255 motion).

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In the motion to amend, Plaintiff seeks to elaborate on his original claim that he

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was prejudiced by counsel’s advice to take the case to trial under the duress defense.

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Doc. 21, at 3. His amended claim would assert that counsel failed to explain the elements

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of the duress defense, failed to inform him of the maximum statutory sentence after trial,

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and failed to inform him about the possibility of a life sentence and consecutive
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sentences. Doc. 21, at 4-6. As noted above, Alisic first raised the allegation that counsel

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failed to explain the duress defense and the penalty of conviction in his objection to the

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R&R. The Ninth Circuit has held “‘categorically that an unsuccessful party is not

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entitled as of right to de novo review by the [district] judge of an argument never

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seasonably raised before the magistrate.’” United States v. Howell, 231 F.3d 615, 621

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(9th Cir. 2000) (citation omitted). The Court will deny the motion to amend because an

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amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); see also

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Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996)

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(holding that a district court may deny a motion to amend “where the movant presents no

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new facts but only new theories and provides no satisfactory explanation for his failure to

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fully develop his contentions originally”).

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IT IS ORDERED:

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Plaintiff’s motion to reopen judgment (Doc. 20) is denied.

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2.

Plaintiff’s motion to amend (Doc. 21) is denied.

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Dated this 23rd day of April, 2012.

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