Smith # 036085 v. Ryan et al

Filing 55

ORDER denying 49 Petitioner's Motion to alter or amend. Signed by Senior Judge Paul G Rosenblatt on 6/2/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joe Clarence Smith,

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No. CV-12-318-PHX-PGR
Plaintiff,
ORDER

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v.

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Charles L. Ryan, et al.,

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Respondents.

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Before the Court is Petitioner’s motion to alter or amend judgment. (Doc. 49.)

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Petitioner asks the Court to reconsider its order and judgment of March 14, 2014, which

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denied Petitioner’s motion for evidentiary development and his petition for habeas corpus

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relief. (Docs. 47, 48.) Respondents filed a response in opposition. (Doc. 51.) As set forth
below, the motion will be denied.
DISCUSSION

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A motion to alter or amend judgment under Rule 59(e) of the Federal Rules of

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Civil Procedure is in essence a motion for reconsideration. Motions for reconsideration

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are disfavored and appropriate only if the court is “presented with newly discovered

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evidence, committed clear error, or if there is an intervening change in the controlling

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law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam) (quoting
389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)); see School Dist.

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No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Motions for reconsideration are not the place for parties to make new arguments
not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip.,

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Inc., 841 F.2d 918, 925–26 (9th Cir. 1988). A motion for reconsideration should not “be

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used to ask the court to rethink what the court had already thought through—rightly or

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wrongly.” United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998)

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(quotation omitted).

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Petitioner argues that he is entitled to reconsideration because the Court
committed clear error in denying Claims 4, 16, 26, 30, and 39. The Court disagrees.
Claim 4

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Petitioner alleged that the trial court violated his right to a fair and impartial jury
by improperly limiting the scope of voir dire and inappropriately rehabilitating
prospective jurors. (Doc. 25 at 22.) The Court denied the claim. (Doc. 47 at 36–40.)

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In his motion for reconsideration, Petitioner states that the Court “failed entirely to

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address Petitioner’s allegation that the trial court’s actions during voir dire detrimentally

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impacted counsel’s credibility, particularly in light of the trial court’s failure to similarly

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interrupt the state.” (Doc. 49 at 3.) The Court failed to address this argument because

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Petitioner did not raise it in his habeas petition. (See Doc. 25 at 22–32.)
Petitioner also contends that in denying Claim 4 the Court “adhere[d] to the
Arizona Supreme Court’s improper standard requiring that, in order to succeed on this
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claim, Petitioner must demonstrate that an automatic death penalty juror sat on his jury.”
(Doc. 49 at 3.) Petitioner misapprehends the basis of this Court’s ruling.

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The Court found that the Arizona Supreme Court’s denial of the claim was not
based on an unreasonable application of Morgan v. Illinois, 504 U.S. 719 (1992). (Doc.
47 at 40.) Morgan requires “an adequate voir dire to identify unqualified jurors,”

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including those who would “impose death regardless of the facts and circumstances of

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the conviction.” 504 U.S. at 727, 729, 736. The Arizona Supreme Court considered and

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rejected Petitioner’s arguments that the trial court conducted voir dire in a manner that

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violated Morgan. State v. Smith, 215 Ariz. 221, 230–32, 159 P.3d 531, 540–42 (2007). In

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reaching this conclusion the court further noted that Petitioner, notwithstanding his

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contention that automatic death penalty jurors could have been seated due to the improper

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voir dire process, failed to “offer any examples of deliberating jurors whom the trial

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judge improperly rehabilitated.” Id. at 231–32, 159 P.3d 541–42. The court did not
require Petitioner to make such a showing to be entitled to relief under Morgan. This
Court concluded, therefore, that the Arizona Supreme Court’s ruling was neither contrary

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to nor an unreasonable application of clearly established federal law, 28 U.S.C.

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2254(d)(1), and Petitioner was not entitled to relief on Claim 4. (Doc. 47 at 40.) The

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Court rejects Petitioner’s argument that this decision was clearly erroneous.

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Claim 16

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Petitioner alleged that his rights to counsel, to a reliable sentence, and to due

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process were violated when the trial court instructed the jury to consider a statutory

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mitigating factor over defense counsel=s objection. (Doc. 25 at 73B77.)
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Petitioner asserts that the Court committed clear error in denying Claim 16
because it failed “to address Petitioner’s allegation that the trial court’s instruction

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deprived him of his right to counsel” under the Sixth Amendment. (Doc. 49 at 4.)
In renewing this argument, Petitioner again relies on Lockett v. Ohio, 438 U.S.

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586, 604 (1978), which held that “the Eighth and Fourteenth Amendments require that

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the sentencer, in all but the rarest kind of capital case, not be precluded from considering,

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as a mitigating factor, any aspect of a defendant’s character or record and any of the

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circumstances of the offense that the defendant proffers as a basis for a sentence less than

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death.” As this Court explained in denying relief on Claim 16, the trial court did not

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violate Lockett by instructing the jury on the significant impairment aggravating factor.

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The instruction was supported by evidence and did not preclude the jury from

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considering any of the mitigating evidence proffered by Petitioner’s counsel. (Doc. 47 at

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17B20.) Neither Lockett nor any other case cited by the parties or located by this Court
supports Petitioner’s assertion that “the trial court’s instruction amounted to state
interference with Petitioner’s Sixth Amendment right to the effective assistance of

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counsel at the penalty phase.” (Doc. 25 at 76.) The Court did not err in denying this
claim.
Claim 26
Petitioner alleged that his right to a fair and impartial jury was violated by the

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jury=s consideration of extraneous evidence during deliberations. (Doc. 25 at 113B14.)

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Petitioner asserts that this Court erred in reviewing Claim 26 under the deferential

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standard of 28 USC § 2254(d)(1).1

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Petitioner did not raise his jury misconduct claim on appeal in state court.

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Respondents, however, have waived a procedural default defense.
Petitioner did raise the claim before the trial court on a motion for a new trial. The

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court held an evidentiary hearing. It then issued an order finding that the juror did not

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consider extrinsic evidence and that Petitioner was not prejudiced by the juror’s conduct.

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This Court reviewed the trial court’s ruling and found that it was not an

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objectively unreasonable application of clearly established federal law. (Doc. 47 at 33.)

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The Court also noted that Petitioner did not cite any controlling authority that would

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support the finding of a constitutional violation in the circumstances present here. (Id.)

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For the reasons set forth in the Court’s order (Doc. 47 at 31B33), therefore, even
under de novo review Petitioner would not be entitled to relief on this claim. The case did

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not involve extended external influences on jurors or confirmed bias. See Henry v. Ryan,
720 F.3d 1073, 1086 (9th Cir. 2013). The Court did not err in denying this claim.

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Claim 30

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Petitioner alleged that “Arizona’s ‘heinous, cruel, or depraved’ aggravating

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circumstance does not genuinely narrow the class of death-eligible offenders, thus

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violating Petitioner’s due process rights and his protection against cruel and unusual

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Under § 2254(d)(1), a petitioner is not entitled to habeas relied for a claim
adjudicated in state court unless “the adjudication of the claim resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” The Court notes that
Petitioner, in arguing that he was entitled to evidentiary development on this claim,
asserted that he had “established, based on the state court record, that the state court
failed to apply, or unreasonably applied, clearly established Federal law.” (Doc. 45 at 7.)
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punishment.” (Doc. 25 at 122.) This Court found that the Arizona Supreme Court’s
denial of the claim was not contrary to or an unreasonable application of clearly

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established federal law, namely Walton v. Arizona, 497 U.S. 639 (1990), overruled on
other part by Ring v. Arizona, 536 U.S. 584 (2002). (Doc. 47 at 56B59.) Petitioner claims
that the Court clearly erred in failing to address his argument that Walton does not apply

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to jury sentencing. (Doc. 49 at 6.)

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In Walton the Supreme Court held that the “especially heinous, cruel or depraved”

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aggravating circumstance was facially vague but that the vagueness was remedied by the

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Arizona Supreme Court’s clarification of its meaning. 497 U.S. at 654. Petitioner argued

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in Claim 30 that Walton does not apply in the context of jury sentencing. (Doc. 25 at

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124.) He cites no support for that proposition. Moreover, there is no clearly established

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federal law holding that jury instructions based on the Arizona Supreme Court’s

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narrowing construction are inadequate, and in any event, Petitioner does not challenge the
trial court’s instructions. Cf. State v. Anderson, 210 Ariz. 327, 352, 111 P.3d 369,
394 (2005) (explaining that jury instructions were not unconstitutionally vague, but

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provided a sufficiently narrow construction to the facially vague statutory terms). Again,

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the Arizona Supreme Court’s rejection of this claim does not entitle Petitioner to habeas

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relief.

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Claim 39

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Petitioner alleged that counsel rendered ineffective assistance at resentencing by

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failing to adequately investigate, develop, and present mitigating evidence. (Doc. 25 at

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136.) Principally, Petitioner faulted counsel for failing to obtain a PET scan of
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Petitioner=s brain. (Id. at 139.)

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The Court denied the claim, finding that counsel’s performance was neither

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deficient nor prejudicial under Strickland v. Washington, 466 U.S. 668 (1984). (Doc. 47
at 61B69.) Petitioner now challenges the Court’s prejudice analysis, claiming that the
Court clearly erred by concluding that the “un-presented evidence was cumulative of the

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evidence presenting during Petitioner’s re-sentencing proceedings.” (Doc. 49 at 9.)

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In seeking reconsideration, Petitioner offers the same arguments the Court

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considered and rejected. See Rezzonico, 32 F.Supp.2d at 1116. He has not provided any

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basis upon which the Court should reconsider its decision. For the reasons already stated,

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Petitioner cannot show that sentencing counsel performed deficiently under the

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deferential standard set forth in Strickland; nor can Petitioner show, given the evidence

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counsel did present and the gravity of the aggravating factors, that there was a reasonable

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probability of a life sentence if the jury had been presented with the PET scan evidence.

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CONCLUSION

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For the reasons set forth above, the Court did not commit clear error in denying

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Claims 4, 16, 26, 30, and 39.
Accordingly,

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IT IS HEREBY ORDERED denying Petitioner’s motion to alter or amend
(Doc. 49).

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Dated this 2nd day of June, 2014.

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