Amaral #097231 v. Ryan et al

Filing 60

ORDER: IT IS ORDERED that the motions for reconsideration (Docs. 48 and 58 ), are granted in part as specified above and denied in all other respects. IT IS FURTHER ORDEDERED that the motion for interlocutory appeal and motion to stay (Doc. 49 ) is denied. IT IS FURTHER ORDERED this case is re-referred to Magistrate Judge Bridget S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a Report and Recommendation on the merits of this case [see attached Order for details]. Signed by Senior Judge James A Teilborg on 12/19/17. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Travis Wade Amaral,
Petitioner,

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ORDER

v.

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No. CV-16-00594-PHX-JAT (BSB)

Charles L Ryan, et al.,

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Respondents.

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Currently pending before the Court are two motions for reconsideration and one

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request to take an interlocutory appeal. The parties’ dissatisfaction with the current state

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of this case stems from the fact that the state filed a “limited” answer (Doc. 33), and then

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the Magistrate Judge to whom this case was assigned issued a Report and

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Recommendation (Doc. 43) (“R&R”) based on this limited answer (rather than the case

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as a whole). This Court then addressed the R&R in a way both parties now seek to have

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reconsidered.

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In the state’s limited answer, the state argued that Petitioner waived his right to

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pursue this collateral attack on his sentence via his plea agreement. (Doc. 33 at 11-14).

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The R&R concluded that the waiver did not preclude the claims in this case. (Doc. 43 at

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7-9). This Court agreed with that conclusion albeit for different reasons. (Doc. 47 at 9-

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10).

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reconsideration on this point.

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Although Respondents disagree with this conclusion, neither party seeks

The R&R went on to address the issue of exhaustion. (Doc. 43 at 4-7). The R&R

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concluded that the Supreme Court case of Montgomery v. Louisiana, ___ U.S. ___, 136

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S. Ct. 718 (2016) did not create a new claim that required exhaustion in state court and,

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alternatively, even if Montgomery did create a new claim, Petitioner had exhausted a

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Montgomery claim. (Id.) This Court disagreed with both of these conclusions. (Doc. 47;

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Doc. 52). Both parties have moved for reconsideration on one or both of these points.

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Turning first to the issue of whether Montgomery created a new claim, both parties

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now argue that this Court erred in finding that Montgomery created a new claim that must

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be exhausted in state court in addition to a claim based on Miller v. Alabama, 567 U.S.

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460, 132 S. Ct. 2455, 2460 (2012).1 Respondents argue, in part, that this Court holding

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that Montgomery created a new claim went beyond the scope of the state’s limited

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answer. However, in objecting to the R&R, Respondents discussed Montgomery and

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whether it was a change in the law at length. Due to this ambiguity, the Court ordered

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supplemental briefing. (Doc. 52).

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Respondents now articulate three possible choices for what Montgomery did to the

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state of the law after Miller. Option 1 is nothing substantive. Montgomery merely

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procedurally made Miller retroactive and did not expand the scope of Miller in any way.

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(Doc. 53 at 6-7). Option 2 (which Respondents advocate as an alternative position in the

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event option 1 is rejected) is that Montgomery substantially expanded the scope of Miller,

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so much so that Montgomery created a new claim that would require separate exhaustion

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in the state courts. (Doc. 53 at 7-8). Finally option 3 is that Montgomery did not change

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the intended holding of Miller but did change the common understanding among courts

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of the actual holding in Miller. (Doc. 53 at 8-13).2 As far as this Court can tell, option 1

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As discussed in this Court’s prior orders, it is undisputed that Petitioner
exhausted a Miller claim in the state courts.
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Petitioner, embedded in his response to Respondents motion for reconsideration,
moves to strike Respondents discussion of Option 3 because it is a discussion of the
merits of the case (among other reasons). (Doc. 57 at 10). That request is denied. The
Court ordered Respondents to file a supplement and did not direct or limit Respondents in
how to best answer the Court’s question in the supplement. However, because of
Petitioner’s procedural objection to reaching the merits of this case at this point, the
Court will not decide whether Respondents’ end result of Option 3 is correct at this time.
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is Respondents position. Option 3 is Petitioner’s position (although Petitioner argues that

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at least one court’s understanding of Miller was not changed by Montgomery).

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At this point on reconsideration, Respondents are arguing that it was wrong of this

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Court to decide that Montgomery created a new claim that required separate exhaustion

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because the Court effectively reached the merits of the Petition even though Respondents

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filed only a limited answer. (Doc. 48 at 2-3). Further, Respondents argue that, given that

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both parties agree that Montgomery did not create a new claim, the Court should

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determine whether Petitioner is entitled to relief based solely on Miller. (Doc. 53 at 1-

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2).3 Petitioner seems to agree with the premise that Montgomery did not create a new

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claim that requires separate exhaustion in state court (Doc. 57 at 10-16).

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Given that both parties now agree that neither advocates that Montgomery created

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a new claim that must be exhausted in state court at this time (subject to this Court’s

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review of the merits of this case), thus making this Court’s holding to the contrary at best

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premature and at worst advisory, the Court will reconsider its prior holding to the extent

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that the Court will defer a decision on whether Montgomery created a new claim that

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requires exhaustion in state court until the Court reaches the merits of this case.4 This

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decision is without prejudice to either party advocating that Montgomery created a new

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claim during the Court’s merits decision in this case. Specifically, Respondents may

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make their alternative argument as summarized herein (or any other argument).

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Similarly, if an examination of option 1 or 3 (or some fourth yet unidentified option)

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Respondents go on to argue that if the Court applies the language of Montgomery
to Petitioner’s claims, rather than limiting the analysis to Miller’s language, the Court
should THEN hold that Montgomery created a new claim that must be exhausted. But
Respondents argue that to reach this holding at this point is premature in the face of their
limited answer. Embedded in various filings of Petitioner is a request to estop
Respondents from making in the alternative arguments that are inconsistent. The Court
finds nothing improper about making in the alternative arguments, which are indeed
sometimes inconsistent, and accordingly, the request for estoppel is denied.
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The Court notes that the Court previously rejected Respondents’ complaint that
the Court wrongfully reached the merits of this case. (Doc. 52 at 2). However, now that
Respondents have clarified that their objection to the R&R was primarily an in-thealternative argument and because both parties agree that they seek reconsideration, the
Court will nonetheless reserve a decision on the consequences of Montgomery to a final
determination of the merits of the Petition in this case as a whole.
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would cause Petitioner to be denied relief, Petitioner is free, in the merits phase, to argue

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that Montgomery created a new claim he should be permitted to exhaust under the state

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law of Valencia.

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Next the Court turns to Petitioner’s motion for reconsideration regarding whether

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he in fact exhausted a Montgomery claim. (Doc. 58).5 The Court previously held that

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Petitioner did not exhaust a Montgomery claim. (Doc. 52 at 2-3).

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reviewed Petitioner’s basis for seeking reconsideration, but does not find reconsideration

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to be warranted.6 Accordingly, the motion will be denied.

The Court has

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Finally, the Court will deny Petitioner’s request to take an interlocutory appeal.

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(Doc. 49). Primarily, the Court will deny the request because the Court is reconsidering

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the issue Petitioner seeks to appeal.

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interlocutory appeal to be warranted in this case.

Alternatively, the Court does not find an

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Based on the foregoing,

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The Court reconsiders its prior orders to the extent that the Court does not find

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Montgomery to be a separate claim that requires exhaustion at this time reserving that

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decision to this Court’s ultimate merits resolution of this case. Both parties are free to

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argue options 1 through 3 (or any other theories) on the merits of this case.

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Reconsideration is denied in all other respects. Accordingly,

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IT IS ORDERED that the motions for reconsideration (Docs. 48 and 58), are
granted in part as specified above and denied in all other respects.
IT IS FURTHER ORDEDERED that the motion for interlocutory appeal and
motion to stay (Doc. 49) is denied.

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Petitioner also seeks to file this motion for reconsideration late. The Court
hereby grants the request to seek reconsideration late.
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In other words, the Court continues to find that if option 2 is reflective of the
state of the law, Petitioner did not fairly present or thereby exhaust a Montgomery claim.
However, the Court notes that if, upon consideration of the merits as both parties seek, it
is determined that either option 1 or option 3 is the state of the law, this conclusion is
purely advisory and unnecessary as neither option 1 nor option 3 recognize Montgomery
as a separate claim. This waste of judicial resources to decide what may turn out to be a
non-issue is an unfortunate consequence of Respondents’ decision to file a limited answer
and the Magistrate Judge’s decision to issue a partial R&R.
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IT IS FURTHER ORDERED this case is re-referred to Magistrate Judge Bridget

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S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further

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proceedings and a Report and Recommendation on the merits of this case.

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Dated this 19th day of December, 2017.

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