Barr #180015 v. Ryan et al

Filing 89

ORDER denying 84 Motion for Reconsideration. The Court's December 22, 2015 Order (Doc. 83 ) is affirmed. (See document for further details). Signed by Magistrate Judge Eileen S Willett on 1/13/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joel K. Barr,

No. CV-14-08060-PCT-GMS (ESW)
Petitioner,

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v.

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ORDER

Charles Ryan, et al.,

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Respondents.

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On December 22, 2015, the Court ruled on a number of pending motions. (Doc.

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83). Petitioner has filed a Motion for Reconsideration (Doc. 84) requesting that the Court

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reconsider the portions of the Order that (i) denied Petitioner’s “Motion for [Further]

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Expansion of the Record (Third Request)” (Doc. 62) and (ii) granted Respondents’

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“Motion to Strike Proposed Interrogatories” (Doc. 58). 1 For the reasons discussed below,

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the Motion for Reconsideration (Doc. 84) is denied.
DISCUSSION

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Motions for reconsideration are disfavored and are not the appropriate mechanism

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by which parties make new arguments or ask the Court to rethink that through which it

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In his Motion (Doc. 84 at 5), Petitioner states that he did not receive Doc. 81,
which is referenced in the Court’s Order. (Doc. 83 at 12, 15). Doc. 81 contains Exhibits
B-ZZ to Respondents’ Answer (Doc. 34) that Respondents electronically filed in
accordance with the Court’s December 17, 2014 Order (Doc. 80). The certificate of
service in Respondents’ Answer (Doc. 34 at 215) indicates that on April 2, 2015,
Respondents served the Answer on Petitioner by mail.

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has already thought. See N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918,

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925–26 (9th Cir.1988); United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.

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1998); Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995);

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Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (motions for reconsideration

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should be granted only in rare circumstances). “Reconsideration is appropriate if the

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district court (1) is presented with newly discovered evidence, (2) committed clear error

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or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” School Dist. No. 1J, Multonomah County v. AC and S, Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993); see also LRCiv 7.2(g)(1) (“The Court will ordinarily deny a

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motion for reconsideration of an Order absent a showing of manifest error or a showing

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of new facts or legal authority that could not have been brought to its attention earlier

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with reasonable diligence.”).

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A. Order Denying Petitioner’s “Motion for [Further] Expansion of the
Record (Third Request)” (Doc. 62)

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Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)”

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(Doc. 62) requested that the Court expand the record to include four documents attached

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to the Motion. In his Motion for Reconsideration (Doc. 84 at 3), Petitioner points out that

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the Court’s Order (Doc. 83) explicitly discusses its reasons for denying the “Motion for

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[Further] Expansion” as to Attachment Nos. 1, 2, and 4, but does not discuss its reasons

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for denying the Motion as to Attachment No. 3. 2 The Court’s Order (Doc. 83 at 16),

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however, denied Petitioner’s “Motion for [Further] Expansion of the Record (Third

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Request)” in its entirety. Therefore, Petitioner’s request for a ruling on Attachment No. 3

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Petitioner seeks to expand the record to include the State’s Exhibit #3 from
Petitioner’s preliminary hearing, which was not admitted into evidence at the time of the
hearing. Exhibit #3 lists 315 “cookies” stored on Petitioner’s computer from October 27,
2001 through January 8, 2003. (“A cookie is usually a small text file that can be put on
[a] computer by a web site.” (Doc. 81-3 at 40)). In support of his “Motion for [Further]
Expansion of the Record” (Doc. 62), Petitioner states that (i) Petitioner’s phone was not
in service until July 25, 2002 as reflected in the phone bill located in Attachment No. 4 to
the Motion (Doc. 62) and (ii) a history of accessed links can be created by opening emails
“unsuspectedly.” (Doc. 62 at 4; Doc. 62-6 at 2-7; Doc. 62-7 at 1-5). Petitioner fails to
meet his burden of proof.
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is denied as moot. (Doc. 84 at 3). To the extent Petitioner seeks a reconsideration of the

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Court’s denial of Petitioner’s Motion (Doc. 62) as to Attachment No. 3, the request is

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denied because Petitioner has not shown “manifest error” or presented “new facts or legal

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authority that could not have been brought to [the Court’s] attention earlier with

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reasonable diligence” that would change the Court’s ruling. See LRCiv 7.2(g)(1).

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Petitioner also asks the Court to reconsider its denial of Petitioner’s request to

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expand the record to include Attachment No. 2 to Petitioner’s “Motion for [Further]

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Expansion of the Record (Third Request)” (Doc. 62). Attachment No. 2 is a document

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purported to be one of the State’s exhibits from Petitioner’s preliminary hearing, which

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was not admitted into evidence at the preliminary hearing.

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Reconsideration, Petitioner states that:
The point I failed to make clear, then, is this: Of the
entire list of URL web addresses which comprise
“Attachment #2,” none of its web addresses match any of the
web addresses of the charged images.
This fact is
tremendously significant in proving my innocence because if
I, or anyone, had used the seized computer to visit the
websites of the charged images, those websites of the charged
images (Exhibit ZZZ, p. 247-263) would also appear in
“Attachment #2 because “Attachment #2” is the State’s
Exhibit purporting to show all of the “suspicious” websites
visited using the seized computer since 8/15/2000.

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(Doc. 84 at 4) (emphasis in original).

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In his Motion for

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However, the 121 charged images are not visited websites, but are image files

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created on Petitioner’s computer. (Doc. 41-1 at 201-276). The descriptions of the 121

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charged images detail the drive path specifications, which indicate the location of the file

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on Petitioner’s computer. (Id.; Doc. 34-2 at 36-62). Some of the images underlying

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Counts 4-124 contain superimposed text.

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underlying Count 124 is the text “Masturbation Lolitas Series. Real Little Lolitas Porno.

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Full-Length

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www.betterlolitas.com.” (Doc. 41-1 at 276). Contrary to Petitioner’s assertion in his

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Reply (Doc. 75-1 at 6-7), the description does not state that the image was downloaded

Video

Clips.

For instance, superimposed on the image

Lesbian

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Lolitas,

Girls-Lolitas

Pictures,

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from www.betterlolitas.com. Nor do the descriptions of any other image state that the

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image was downloaded from a particular website. Further, computer forensic analyst

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Joann Kennedy did not testify that any image was downloaded from a particular website.

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(Doc. 81-3 at 7-251; Doc. 41-1 at 168-276). Ms. Kennedy only opined that there is a

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correlation between the images created on Petitioner’s computer and the internet history

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on Petitioner’s computer. (Doc. 81-3 at 68). Moreover, Ms. Kennedy explained that the

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extracted list of visited websites may not be complete because some of the internet

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history may have been overwritten or deleted. (Id. at 49-50, 54). Therefore, Petitioner’s

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argument above that Attachment No. 2 is significant in proving Petitioner’s alleged

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innocence is without merit. Construing the argument liberally, however, it is possible

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that Petitioner intended to reiterate the following argument made in his “Reply to

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Respondent’s Response to Petitioner’s Third Motion to Expand the Record” (Doc. 75):
I have not yet found a precise correspondence between any of
the charged images (Exhibit ZZZ, p. 247-262) and the
websites of “Attachment #2.” Instead, I find more and more
evidence of fraud.
For example: Beginning with the very First Charged
Images (id., p. 247, #1), the State alleges that those images
were created at 11:08:50 PM, and were exited (Last Written)
at 11:09:02 PM on December 23, 2002.
However, according to Joann Kennedy’s URL list
(“Attachment #2”) no website was visited that night, by that
computer until 11:10:35 PM. In other words it was
impossible to have downloaded those Charged Images when
she said they were created. Because, in order to do so, the
images would have had to be downloaded before the website
that purportedly contained them had been visited!

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(Doc. 75-1 at 4).

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Again, Ms. Kennedy did not testify that the images were downloaded from a

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particular website. (Doc. 81-3 at 7-251; Doc. 41-1 at 168-276). Ms. Kennedy testified

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that the extracted internet history may not be complete and that there is just a correlation

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between the images created on Petitioner’s computer and the internet history. (Doc. 81-3

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at 49-50, 54, 68).

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Finally, Petitioner reiterates the argument made in his Reply (Doc. 75) that

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Attachment No. 2 “contains evidence” that Ms. Kennedy “inserted false date/time

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information” into the document “to make it appear that someone had used the seized

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computer on 12/29/02 to visit suspicious websites.” (Doc. 84 at 5). Petitioner’s Reply

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asserts that:

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Apparently, in [Joann Kennedy’s] attempt to make it
appear that other websites had also been visited that day,
Joann Kennedy changed the computer’s clock from 9:39 AM
to the time of 12:02:00 AM ([Attachment #2, p.7 of 16] URL
#235) and proceeded to click on sixteen additional websites
(id. URL # 235-250).
Please note that by doing so she caused URL 234,
which has a time of 09:39:11 AM to appear to have been
visited before URL 235, which has a time of 12:02:04 AM.
9:39:11 AM on 12/29/2002 (URL #234) should be
shown to occur AFTER 12:02:04 AM on 12/29/2002. Instead
Joann Kennedy has created an impossible situation in which
URL’s 235-250 have occurred . . . BEFORE URL #235. This
is further proof that “Attachment #2” was fraudulently
created by Joann Kennedy to assist the State in winning the
wrongful conviction of a man who is actually innocent.
(Doc. 75 at 23-24) (emphasis in original).

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There is no foundational evidence of how Attachment No. 2 was prepared or how

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the data was sorted. The data in Attachment No. 2 is sorted by earliest date to latest date,

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then by earliest time to latest time. Attachment No. 2 does not show that Ms. Kennedy or

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anyone else falsified data and is irrelevant to Petitioner’s attempt to overcome

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Respondent’s affirmative defenses. The Court affirms its denial of Petitioner’s “Motion

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for [Further] Expansion of the Record (Third Request)” (Doc. 62).

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B. Order Granting Respondents’
Interrogatories” (Doc. 58)

“Motion

to

Strike

Proposed

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The Court’s Order (Doc. 83) granted Respondents’ “Motion to Strike Proposed

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Interrogatories” (Doc. 58). Petitioner takes issue with the Court’s statement that “even

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if Petitioner’s recollection of the precise events on December 29, 2002 is correct,

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Petitioner has failed to show that no reasonable juror would find that ‘on or about’

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December 29, 2002, Petitioner committed the crimes of child molestation and

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furnishing harmful items to minors.” (Doc. 83 at 5). Petitioner argues that due in part

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to an alibi defense presented at his trial, “it was incumbent upon the State to prove that

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[the victim’s] allegations of molestation and exposure to pornography did occur on

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‘Sunday, December 29, four days after Christmas.’” (Doc. 84 at 8) (emphasis in

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original). Petitioner’s contention reiterates the claim made in Ground Thirteen of the

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First Amended Petition (Doc. 8 at 36-37; Doc. 8-9 at 19-22). Ground Thirteen alleges

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that the trial court erred in instructing the jury that any reasonable date near the date of

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December 29, 2002 was sufficient to find Petitioner guilty on Counts 1 and 2. (Id.).

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For the reasons discussed below, Petitioner’s apparent attempt to intertwine the merits

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of Petitioner’s Ground Thirteen 3 with Petitioner’s request to propound the proposed

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interrogatories is not well taken.

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In his Motion (Doc. 84 at 5-7), Petitioner clarifies that he is not seeking to

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propound the proposed interrogatories to support a freestanding actual innocence claim,

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but rather to support his Schlup claim. 4 Petitioner also clarifies that his proposed

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interrogatories are not designed to elicit a recantation of the trial testimony of the victim

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and the victim’s mother. (Doc. 84 at 12). Instead, Petitioner states that the “truthful

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answers” to the proposed interrogatories “will simply provide evidence” from the

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victim and the victim’s mother that Petitioner “cannot possibly be the person who

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molested [the victim] and forced her to watch pornography on that very specific date of

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‘Sunday, December 29, four days after Christmas.’” (Id. at 13). The jury, however, did

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Respondents argue that Ground Thirteen is procedurally defaulted. (Doc. 34 at
46). If the Court rejects Respondents’ asserted procedural defense, it will direct
Respondents to file a response regarding the merits of Petitioner’s claim.
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As stated in the Court’s Order (Doc. 83 at 3), a petitioner attempting to pass
through the Schlup gateway must establish his or her factual innocence of the crime(s) for
which he or she was convicted. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo
v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). It is not enough to establish legal
insufficiency. Id.

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not convict Petitioner on Count 2 and the lesser included offense of Count 1 for acts that

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were committed on the precise date of December 29, 2002. Instead, the jury convicted

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Petitioner on those counts for acts that occurred “on or about” December 29, 2002. It is

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thus possible that the jury may have accepted Petitioner’s alibi defense that he could not

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have committed the acts on December 29, 2002, but instead found that Petitioner

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committed the acts on a date “reasonably near” December 29, 2002. See State v. Davis,

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79 P.3d 64, 78 (Ariz. 2003) (rejecting defendant’s argument that because the State was

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not required to prove the specific commission date for his sexual misconduct with a

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minor conviction, he was effectively prevented from presenting an alibi defense; and

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stating that “the jury either rejected Davis’s alibi defense outright or concluded that,

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although he may have been at work on [January] 29th, he nevertheless had a sexual

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encounter with [the victim] ‘on or about’ January 29th”). Any new evidence indicating

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that it would have been impossible for Petitioner to commit the offenses on December

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29, 2002 would not establish that Petitioner is factually innocent of Petitioner’s

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convictions. Accordingly, the Court’s affirms its Order granting Respondents’ “Motion

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to Strike Proposed Interrogatories” (Doc. 58).
CONCLUSION

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For the reasons discussed above, Petitioner has failed to present newly discovered

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evidence. Petitioner has failed to demonstrate that the Court committed clear error, or

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that the Court’s decision was manifestly unjust. There has been no intervening change

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in controlling law. Therefore,

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IT IS ORDERED denying Petitioner’s “Motion for Reconsideration” (Doc. 84).
The Court’s December 22, 2015 Order (Doc. 83) is affirmed.
Dated this 13th day of January, 2016.

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