Atwood, et al v. Stewart, et al

Filing 513

ORDER DENYING 511 Petitioners Motion to Alter or Amend the Judgment and Alter or Make Additional Findings. Signed by Judge John C Coughenour on 2/28/14.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank Jarvis Atwood,

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Petitioner,

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Charles L. Ryan, et al.,

DEATH PENALTY CASE

vs.

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No. CV-98-116-TUC-JCC

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ORDER

Respondents.

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Before the Court is Petitioner’s motion to alter or amend judgment and alter or
make additional findings pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil
Procedure. (Doc. 511.) For the reasons that follow, the motion is denied.
Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources.” Kona Enter., Inc. v. Estate of Bishop,
229 F.3d 877, 890 (9th Cir. 2000). The Ninth Circuit has consistently held that a motion
brought pursuant to Rule 59(e) should be granted only in “highly unusual circumstances”
and may not be used to raise arguments or present evidence for the first time that
reasonably could have been raised earlier. Id.; see 389 Orange Street Partners v. Arnold,
179 F.3d 656, 665 (9th Cir. 1999). Similar considerations underlie requests under Rule
52(b). Diebitz v. Arreola, 834 F. Supp. 298, 302 (E.D. Wis. 1993). Generally, relief is
appropriate only if (1) the court is presented with newly discovered evidence, (2) there is
an intervening change in controlling law, or (3) the court committed clear error.

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McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam); see School
Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
In its order of January 27, 2014, the Court determined that Petitioner’s motion for
reconsideration under Martinez v. Ryan, 132 S. Ct. 1309 (2012), significantly broadened
a sentencing-phase ineffective-assistance-of-counsel (IAC) claim raised in his federal
habeas petition such that it constituted a new claim for habeas relief not properly before
the Court absent amendment. Petitioner argues in the instant motion that, in faulting
Petitioner for not fully presenting his sentencing IAC claim in the petition, the Court
failed to address prior habeas counsel’s conflict of interest. Specifically, he argues that
prior counsel Dan Davis had “no incentive to factually or legally develop a claim that
was clearly procedurally defaulted under then prevailing habeas law” and that Davis
suffered from a conflict of interest that prevented the claim from being properly plead in
his federal habeas petition. (Doc. 511 at 3.)
His contentions to the contrary notwithstanding, Petitioner did not explicitly argue
to the Court in prior pleadings that Davis’s alleged conflict provided a basis for
“excusing” Petitioner’s failure to fully present the sentencing IAC claim in his federal
habeas petition. In his ten-page memorandum regarding amendment, Petitioner argued
that his request to amend had been made in good faith and not as a result of undue delay.
Within that argument, he asserted in one sentence without citation to authority that
because Davis “also served as federal habeas counsel, there was a conflict in regard to the
Martinez claim that prevented a fair resolution and investigation of the underlying facts
supporting post-conviction counsel’s ineffectiveness as cause for the procedural default.”
(Doc. 379 at 9.) This isolated statement made in passing hardly put the Court on notice
of the argument now being advanced―that the alleged conflict prevented Davis from
more fully investigating and pursuing a sentencing-phase IAC claim in federal habeas
proceedings that he had failed to present in state court. Similarly, Petitioner’s brief
reference to Davis’s alleged conflict in his reply to Respondents’ opposition to

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Petitioner’s motion for reconsideration was made solely in response to Respondents’
assertion that Davis’s ineffectiveness during post-conviction proceedings could serve as
cause to excuse a procedural default only if such allegations were separately exhausted in
state court. (Doc. 385 at 5–6.) Because Petitioner did not previously raise the issue, the
Court did not clearly err in not addressing whether Davis’s alleged conflict excused
Petitioner’s failure to fully present his sentencing-phase IAC claim in his petition.
Even were the Court inclined to consider this argument for the first time in a postjudgment motion, Petitioner would not be entitled to relief.
Davis, who served as Petitioner’s state post-conviction counsel, was appointed as
co-counsel in these federal habeas proceedings in 1998. He was replaced by substitute
counsel in February 2012 and months later passed away. At the time Petitioner filed his
first amended habeas petition in May 2000, he was represented by Davis as well as lead
counsel Larry Hammond, whose firm Osborn Maledon utilized a paralegal, law clerks,
and associates to work on Petitioner’s case.
Petitioner argues that Davis was unable to “continue to aggressively investigate
and pursue a claim that clearly was never presented in state court” because to do so
would have required Davis to assert his own ineffectiveness as state post-conviction
counsel. This argument is based on a recent change in procedural law resulting from the
Supreme Court’s decision in Martinez, which created a narrow exception to the wellestablished rule in Coleman v. Thompson, 501 U.S. 722, 731 (1991), that ineffective
assistance of counsel during state post-conviction proceedings cannot serve as cause to
excuse the procedural default of a trial-level IAC claim. However, at the time Petitioner
filed his first amended federal habeas petition, 12 years before Martinez was decided, it
was settled law that the ineffective assistance of post-conviction counsel could serve as
neither an independent constitutional basis for habeas relief, see 28 U.S.C. § 2254(I), nor
as cause to excuse the procedural default of other constitutional claims, pursuant to
Coleman. Thus, Davis’s continued representation of Petitioner from state to federal court

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could not, in itself, have served to prevent Davis from pursuing or investigating claims
not raised in state court. See Jones v. Ryan, 733 F.3d 825, 836 (9th Cir. 2013) (rejecting
argument that state post-conviction counsel was ineffective during federal habeas
proceedings for not raising unexhausted trial-level IAC claims in federal petition filed
eight years before Martinez was decided).
Moreover, in this case, Petitioner raised a plethora of claims in his federal habeas
petition that had not been fairly presented in state court proceedings, including a
sentencing-phase IAC claim. (See Doc. 127.) It defies logic to assert that Davis’s
alleged conflict prevented him from aggressively investigating the sentencing-phase IAC
claim but not from raising it in the first place. In addition, the Court takes judicial notice
from its review of counsel’s billing history that lead counsel Larry Hammond and his
associates did the vast majority of work in this matter, including preparation of the first
amended habeas petition. Petitioner does not assert that Hammond operated under a
conflict of interest or was inhibited on some other basis from alleging in the habeas
petition the new factual allegations set forth in the motion for reconsideration. Thus,
even assuming that a federal habeas attorney’s conflict of interest from having served as
state post-conviction counsel can provide a basis to “excuse” a failure to fully brief a
federal habeas claim, any alleged conflict for Davis does not explain Petitioner’s failure
to present all of the relevant facts supporting his sentencing-phase IAC claim when he
filed his petition in 2000.
Petitioner also argues that Davis’s conflict warrants equitable tolling of the federal
habeas statute of limitations. First, Petitioner could have raised this argument in reply to
Respondents’ assertion of a timeliness bar in its opposition to Petitioner’s request for
amendment (Doc. 383 at 4). Therefore, it is not properly before the Court. See Kona
Enter., Inc., 229 F.3d at 890 (noting that post-judgment motion is not to be used to raise
arguments that reasonably could have been raised earlier in litigation).

Second, as

already explained, nothing about the alleged conflict inhibited Petitioner’s ability to more

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fully develop and present the sentencing-phase IAC claim actually raised in his amended
federal habeas petition.

Thus, even if the Court were to consider this argument,

Petitioner has not demonstrated “that some extraordinary circumstance stood in his way
and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 2562 (2010) (internal
citation omitted).
Based on the foregoing,
IT IS HEREBY ORDERED that Petitioner’s Motion to Alter or Amend the
Judgment and Alter or Make Additional Findings (Doc. 511) is DENIED.
DATED this 28th day of February, 2014.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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