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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adnan Alisic, No. CV11-0063-PHX-DGC Plaintiff, 10 11 v. 12 ORDER United States of America, 13 Defendant. 14 15 On February 3, 2012, the Court entered an order adopting Magistrate Judge 16 Aspey’s report and recommendation (“R&R”) that Plaintiff Adnan Alisic’s amended 17 motion to vacate, set aside, or correct his sentence (Doc. 4) be denied. Doc. 16. On 18 February 27, 2012, Alisic filed a motion for reconsideration (Doc. 18), which the court 19 denied on March 2, 2012 (Doc. 19). Alisic has now filed a motion to reopen judgment, 20 which the Court construes as a second motion for reconsideration. Doc. 20. Alisic has 21 also filed a motion to amend. Doc. 21. The Court will deny both motions. 22 In the second motion for reconsideration, Alisic claims that he was prejudiced by 23 counsel’s advice to take the case to trial under the duress defense because counsel did not 24 explain the elements of duress and did not inform Alisic of the statutory maximum 25 sentence. Doc. 20, at 2. Alisic claims that he would have signed a plea agreement had he 26 been properly advised about the duress defense. Id. at 3. Alisic previously raised this 27 argument in his amended § 2255 motion (Doc. 4, at 11-12) and in his first motion for 28 reconsideration (Doc. 18, at 4-6). 1 Motions for reconsideration should not ask the Court to rethink its analysis. See 2 Northwest Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 3 1988); United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998). Courts in 4 this District have identified four circumstances where a motion for reconsideration will 5 be granted: (1) the moving party has discovered material differences in fact or law from 6 those presented to the Court at the time of its initial decision, and the party could not 7 previously have known of the differences through the exercise of reasonable diligence, 8 (2) material factual events have occurred since the Court’s initial decision, (3) there has 9 been a material change in the law since the Court’s initial decision, and (4) the movant 10 makes a convincing showing that the Court failed to consider material facts that were 11 presented to the Court at the time of its initial decision. See Motorola, Inc. v. J.B. 12 Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003); Rice v. Lender 13 Servs. Direct, Inc., No. CV-06-2727-PHX-DGC, 2007 WL 2287873, at *1 (D. Ariz. 14 Aug. 8, 2007). Alisic presents no newly discovered evidence or new factual events; 15 rather, he acknowledges that the claims asserted in his second motion for reconsideration 16 “arise from the core facts [raised in his previous motions] that are not different in time 17 and type.” Doc. 20, at 5. He has not presented an intervening change in controlling law, 18 nor has he shown that the Court failed to consider material facts presented at the time of 19 its initial decision. See Doc. 16, at 12 (counsel’s alleged failure to sufficiently explain the 20 duress defense and the penalty of conviction after trial was not a proper basis for Alisic’s 21 objection to the R&R when raised for the first time in his objections); see also Doc. 19, 22 at 1 (Alisic has not cited new law or facts that occurred after the Court’s denial of his 23 § 2255 motion). 24 In the motion to amend, Plaintiff seeks to elaborate on his original claim that he 25 was prejudiced by counsel’s advice to take the case to trial under the duress defense. 26 Doc. 21, at 3. His amended claim would assert that counsel failed to explain the elements 27 of the duress defense, failed to inform him of the maximum statutory sentence after trial, 28 and failed to inform him about the possibility of a life sentence and consecutive -2- 1 sentences. Doc. 21, at 4-6. As noted above, Alisic first raised the allegation that counsel 2 failed to explain the duress defense and the penalty of conviction in his objection to the 3 R&R. The Ninth Circuit has held “‘categorically that an unsuccessful party is not 4 entitled as of right to de novo review by the [district] judge of an argument never 5 seasonably raised before the magistrate.’” United States v. Howell, 231 F.3d 615, 621 6 (9th Cir. 2000) (citation omitted). The Court will deny the motion to amend because an 7 amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); see also 8 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) 9 (holding that a district court may deny a motion to amend “where the movant presents no 10 new facts but only new theories and provides no satisfactory explanation for his failure to 11 fully develop his contentions originally”). 12 IT IS ORDERED: 13 1. Plaintiff’s motion to reopen judgment (Doc. 20) is denied. 14 2. Plaintiff’s motion to amend (Doc. 21) is denied. 15 Dated this 23rd day of April, 2012. 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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