Pandeli v. Ryan et al

Filing 123

ORDER denying 118 Motion for Reconsideration. Signed by Judge John J Tuchi on 1/6/23. (SMF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darrel Peter Pandeli,

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No. CV-17-01657-PHX-JJT

Petitioner,

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v.

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David Shinn, et al.,

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ORDER
DEATH PENALTY CASE

Respondents.

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Before the Court is Respondents’ Motion for Reconsideration. (Doc. 118.) They ask

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the Court to reconsider, pursuant to Local Rule 7.2(g), its order granting Pandeli’s motion

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under Rhines1 to stay these proceedings and hold them in abeyance while he exhausts

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claims in state court. As directed by the Court, Pandeli filed a response to the motion. (Doc.

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121.) Respondents filed a reply. (Doc. 122.) The motion is denied for the reasons set forth

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below.
DISCUSSION

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A court will ordinarily deny “a motion for reconsideration of an Order absent a

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showing of manifest error or a showing of new facts or legal authority that could not have

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been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). A motion

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for reconsideration is appropriate only where the district court “(1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust,

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or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah

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Rhines v. Weber, 544 U.S. 269 (2005).

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County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Motions for reconsideration

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should be granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F.

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Supp. 1342, 1351 (D. Ariz. 1995). They should not be used to ask a court “‘to rethink what

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the court had already thought through—rightly or wrongly.’” Id. (quoting Above the Belt,

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Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Nor may they “be

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used to raise arguments or present evidence for the first time when they could reasonably

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have been raised earlier in the litigation,” Kona Enterprises, Inc. v. Estate of Bishop, 229

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F.3d 877, 890 (9th Cir. 2000), or to repeat any argument previously made in support of or

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in opposition to a motion, Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215

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F.R.D. 581, 586 (D. Ariz. 2003). Finally, mere disagreement with a previous order is an

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insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572,

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1573 (D. Haw. 1988).

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In their “omnibus” response to Pandeli’s request for leave to file a motion to stay

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and abey, Respondents stated: “Here, Pandeli filed a mixed petition.” (Doc. 111 at 5; see

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Doc. 115 at 2.) Respondents also acknowledged in their answer to Pandeli’s petition that

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“Claim 1 was a mixed claim in which some subclaims were exhausted and some were not.”

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(Id. at 5–6.)

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Now, however, Respondents contend that the Court committed “manifest error

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caused by their own mistaken characterization of Pandeli’s petition as mixed.”2 (Doc. 118

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at 1.) Respondents argue that the petition is not mixed because all of the claims are

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exhausted, either by the state courts’ merits review or technically exhausted because

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Pandeli would be barred from raising them in a successive PCR petition. (Doc. 118 at 3-4.)

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Specifically, they assert that Claim 1, alleging ineffective assistance of counsel, would be

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deemed waived and precluded under Rule 32.1(a) of the Arizona Rules of Criminal

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Procedure.

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Only mixed petitions—those containing both exhausted and unexhausted claims—or
petitions containing only unexhausted claims are subject to a stay under Rhines. See Mena
v. Long, 813 F.3d 907, 912 (9th Cir. 2016).
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Respondents’ argument is not appropriate for a motion to reconsider. See Kona

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Enterprises, 229 F.3d at 890. They had the opportunity in their response to Pandeli’s

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motion to argue that the petition was not mixed, but instead took the opposite position and

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analyzed his stay request by applying the Rhines standard. (Doc. 111 at 4–8.)

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Respondents are also asking the Court to rethink what it has already thought

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through. Defenders of Wildlife, 909 F. Supp. at 1351; see Am. States Ins. v. Ins. Co. of

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Penn., 245 F. Supp. 3d 1224, 1226 (E.D. Cal. 2017) (denying reconsideration where

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defendants “improperly attempt[ ] to take a ‘second bite’ at issues already decided against

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[them].”). As Pandeli notes, the Court’s decision to grant a stay under Rhines was not based

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solely on Respondents’ concession that the petition was mixed. The Court also took into

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account Pandeli’s arguments about the potential effect of Shinn v. Ramirez, 142 S. Ct. 1718

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(2022), on a habeas petitioner’s opportunity to present new evidence. The Court cited

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Guevara-Pontifes v. Baker, No. 3:20-cv-00652-ART-CSD, 2022 WL 4448259 (D. Nev.

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September 23, 2022), where the district court rejected the argument, similar to that made

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by Respondents here, that the state’s procedural bar rules would render a return to state

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court futile. Id. at *4–5; see Pandeli v. Shinn, No. CV-17-01657-PHX-JJT, 2022 WL

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16855196, at *5 (D. Ariz. Nov. 10, 2022).

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Accordingly,

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IT IS ORDERED that Respondents’ Motion for Reconsideration (Doc. 118) is

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DENIED.
Dated this 6th day of January, 2023.

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Honorable John J. Tuchi
United States District Judge

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