Hipskind #250823 v. Ryan et al

Filing 33

IT IS ORDERED that Petitioner's 32 Motion to Alter or Amend Judgment is denied. Signed by Judge David G Campbell on 6/19/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dennis Alan Hipskind,
Petitioner,

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ORDER

v.

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No. CV-16-01713-PHX-DGC

Charles L Ryan, et al.,

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Respondents.

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Petitioner Dennis Hipskind filed a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Doc. 1. On March 6, 2018, the Court accepted Magistrate

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Judge Michelle H. Burns’s report and recommendation (R&R) and denied the petition.

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Doc. 27. The Clerk entered judgment accordingly. Doc. 28. Petitioner now moves for

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reconsideration under Rule 59 of the Federal Rules of Civil Procedure. Doc. 32. For the

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reasons set forth below, the Court will deny the motion.

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I.

Legal Standard.

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Motions for reconsideration are disfavored and are not the place for parties to

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make new arguments not raised in their original briefs and arguments. See Carroll v.

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Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Nor should such motions ask the Court to

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rethink what it has already considered. See United States v. Rezzonico, 32 F. Supp. 2d

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1112, 1116 (D. Ariz. 1998) (citing Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99

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F.R.D. 99, 101 (E.D. Va. 1983)). Rule 59(e) permits alteration or amendment only if:

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(1) newly discovered evidence has been presented, (2) the Court committed clear error,

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(3) the judgment is manifestly unjust, or (4) there is an intervening change in controlling

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law. See United Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir.

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2009).

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II.

The R&R and the Court’s Order Accepting It.

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Petitioner’s § 2254 petition asserted seven grounds for relief (Doc. 1), but the

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Court did not reach the merits. Petitioner’s claims are both barred by the one-year statute

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of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996

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(“AEDPA”) and procedurally defaulted. See Doc. 27.

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III.

Petitioner’s Rule 59 Arguments.

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Petitioner’s motion for reconsideration argues that his seven grounds for relief

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“have been so minimized as to disguise the real facts not to reveal the actual

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constitutional issues.” Doc. 32 at 2. But the Court did not reach the substance of

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Petitioner’s grounds for relief because the claims are time barred. See Doc. 27 at 4-7; 28

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U.S.C. § 2244(d).

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Petitioner also argues that certain findings are “in error and contrary to the record

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or to Arizona law.” Doc. 32 at 3. But the findings Petitioner cites appear in the state

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court’s opinion denying Petitioner’s state petition for post-conviction relief. See Doc. 27

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at 2-3. The Court quoted this opinion solely for background purposes. Id. The Court

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made no findings regarding the merits of Petitioner’s grounds for relief.

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Petitioner’s motion also reargues several of his claims on the merits. See Doc. 32

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at 9-12. The Court did not consider the substance of the claims in its order accepting the

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R&R, and will not consider them in the context of a Rule 59 motion.

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A.

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With respect to the statute of limitations, Petitioner argues – just as he did in his

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objections – that the 28-day period between the Arizona Court of Appeals’ issuance of

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the initial mandate and Petitioner’s filing of a motion to recall the mandate should be

Statute of Limitations.

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tolled. Doc. 32 at 3-4; see also Doc. 23 at 3. Petitioner has not shown circumstances

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warranting reconsideration of this issue.

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Petitioner concedes that the relevant facts are undisputed and does not assert

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newly discovered evidence, an intervening change in law, or manifest injustice. See

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Doc. 32 at 3-4. He simply repeats his argument that the state appellate court’s granting of

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Petitioner’s motion to recall rendered the initial mandate null and void for purposes of

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AEDPA’s statute of limitations. Id. As explained in the Court’s order, the statute of

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limitations is tolled only while a state post-conviction proceeding is “pending.” Doc. 27

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at 6; 28 U.S.C. § 2244(d)(2). After the Arizona Court of Appeals issued its initial

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mandate, nothing was pending in Petitioner’s post-conviction proceeding until 28 days

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later when Petitioner filed a motion to recall the mandate.

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Petitioner does not cite, and the Court has not found, any case holding otherwise.

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Federal courts that have addressed this issue have also found that the limitations period is

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not tolled during the time between the expiration of a petitioner’s time to appeal and the

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filing of a request to file a belated appeal. See Streu v. Dormire, 557 F.3d 960, 966 (8th

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Cir. 2009) (“We thus agree with the conclusion of several other courts that an application

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is not ‘pending’ between the expiration of the time for appeal and the filing of a petition

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for belated appeal.”) (citing McMillan v. Sec’y for Dep’t of Corr., 257 F. App’x 249, 252

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(11th Cir. 2007); Allen v. Mitchell, 276 F.3d 183, 186 (4th Cir. 2001); Melancon v.

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Kaylo, 259 F.3d 401, 407 (5th Cir. 2001); Gibson v. Klinger, 232 F.3d 799, 807 (10th

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Cir. 2000); Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000)).

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Petitioner has not shown clear error in the Court’s holding that Petitioner’s claims
are untimely.

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B.

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The Court also held that each of Plaintiff’s seven grounds for relief is procedurally

Procedural Default.

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defaulted.

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presented in Petitioner’s direct appeal and were subsequently procedurally barred under

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Arizona Rule of Criminal Procedure 32.2(a) in Petitioner’s post-conviction-relief

Doc. 27 at 7-11.

Specifically, Grounds One, Two, and Three were not

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proceeding. Id. at 8. Grounds Four, Five, and Seven were never presented in state court,

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and Petitioner will now be procedurally barred from bringing them under Rule 32.2(a).

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Id. Ground Six, a claim for ineffective assistance of appellate and post-conviction-

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proceeding counsel, was argued for the first time in Petitioner’s reply in support of his

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state petition for post-conviction relief, and was not addressed in his subsequent petition

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for review with the Arizona Court of Appeals. Id. at 9. Thus, this claim was not fairly

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presented in state court.

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Petitioner argues that the Court’s reading of Rule 32.2 is incorrect, asserting:

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“There is no language anywhere in Rule 32 that says that if an issue has not been raised

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in a direct appeal, it is deemed waived and cannot be raised in post-conviction

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proceedings.” Doc. 32 at 14. Rule 32.2(a) states that a “defendant is precluded from

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relief under Rule 32 based on any ground: . . . waived at trial, on appeal, or in any

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previous collateral proceeding.” Arizona courts apply this rule to preclude a defendant

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from raising a claim in a Rule 32 petition where the defendant failed to timely raise it in

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prior proceedings. See Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002) (“For most

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claims of trial error, the state may simply show that the defendant did not raise the error

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at trial, on appeal, or in a previous collateral proceeding, and that would be sufficient to

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show that the defendant has waived the claim.”). There is an exception for certain types

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of claims enumerated in Rule 32.2(b) and for claims of “sufficient constitutional

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magnitude.” See State v. Espinosa, 29 P.3d 278, 280 (Ariz. Ct. App. 2001). But as

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explained in the Court’s order accepting the R&R, Petitioner’s claims do not fall into the

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exception. See Doc. 27 at 10.

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If Petitioner were to bring a second Rule 32 petition, Grounds One through Five

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and Seven would be deemed waived and thus precluded under Rule 32.2(a)(3) because

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Petitioner failed to raise them on direct appeal. Ground Six would also likely be deemed

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waived because it was not raised until Petitioner’s reply brief in support of his first

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Rule 32 petition, and was not raised in his subsequent petition for review to the court of

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appeals.

See State v. Bennett, 146 P.3d 63, 67 (Ariz. 2006) (“[W]hen ‘ineffective

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assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-

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conviction relief proceeding, subsequent claims of ineffective assistance will be deemed

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waived and precluded.’”).

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because they were not exhausted in state court.

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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Before a federal court may grant

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habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.”).

In any event, the Court cannot hear Petitioner’s claims
See 28 U.S.C. § 2254(b)(1)(A);

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Petitioner argues that Grounds Four through Seven were fairly presented in state

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court. Doc. 32 at 15. The Court considered and rejected this same argument in its order

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accepting the R&R. See Doc. 27 at 11. Petitioner identifies no clear error in the Court’s

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analysis.

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C.

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Petitioner asks the Court to reconsider its decision to deny a certificate of

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appealability. Doc. 32 at 6-8. Specifically, Petitioner argues that reasonable minds could

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differ as to whether the 28-day period should be tolled because “no case law cited by the

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Court requires or authorizes” the Court’s holding. Id. at 8. Although there is no binding

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precedent requiring the Court’s conclusion on this issue, Petitioner has identified no law

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in support of the opposite conclusion. Since the Supreme Court’s decision in Carey v.

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Saffold, 536 U.S. 214 (2002), it appears that every court to address this issue has agreed

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that tolling is not available during the time between the expiration of an appeal period

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and a request to file a belated appeal. See supra Part III(A). The Court therefore does

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not find this issue fairly debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000)

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(“When the district court denies a habeas petition on procedural grounds without reaching

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the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue

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when the prisoner shows, at least, that jurists of reason would find it debatable . . .

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whether the district court was correct in its procedural ruling.”). Nor could reasonable

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minds differ as to Petitioner’s failure to exhaust his claims and resulting procedural

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default. The Court will not reconsider its decision to deny a certificate of appealability.

Certificate of Appealability.

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IT IS ORDERED that Petitioner’s motion to alter or amend judgment (Doc. 32)
is denied.
Dated this 19th day of June, 2018.

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