Hollenback v. Ryan et al

Filing 31

*ORDER that Respondents' motion for reconsideration and to amend/alter the judgment is GRANTED in part (Doc. 20 ). This Court's Order (Doc. 18 ) entered on September 20, 2013 is AMENDED to reflect the denial of Ground Four with pr ejudice for the reasons stated in the Order. This Court's Order is FURTHER AMENDED to vacate this Court's order directing the state court to vacate Count 1 of Petitioner's conviction. The Clerk of Court shall amend the Judgment (Doc. 19 ) to reflect that the Petition (Doc. 1 ) is denied with prejudice and the action is dismissed in its entirety. Signed by Senior Judge Frank R Zapata on 5/14/2014.(MFR) *Modified on 5/15/2014 (MFR).

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Michael Hollenback,

10

Petitioner,

11

ORDER

vs.

12

No. CV 10-00333-TUC-FRZ

Charles Ryan, et al.,

13

Respondent.

14
15

Presently pending before the Court is Respondents’ motion for reconsideration of

16

this Court’s Order and Judgment filed on September 20, 2013, granting relief on Ground

17

Four of the Petition for Writ of Habeas Corpus (Doc. 1) filed by Robert Michael

18

Hollenback. (Doc. 18.) Respondents challenge this Court’s finding that the state court’s

19
20
21
22
23
24
25
26
27
28

determination that trial counsel’s decision not to request a lesser included instruction on
attempted child molestation was a sound strategic decision was an unreasonable
determination under 28 U.S.C. § 2254(d)(2). Respondents also challenge this Court’s
determination that prejudice was manifest by the trial court’s failure to give the lesser
included instruction because it would have been supported by the evidence. For the
reasons stated below, the Court grants the motion for reconsideration, in part, and denies
Ground Four of the Petition (Doc. 1).
The factual and procedural background of this matter has been previously
summarized in this Court’s order dated September 19, 2013, and will not be repeated
here.

1

"The purpose of a motion for reconsideration is to correct manifest errors of law or

2

fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906,

3

909 (3rd Cir. 1985). At the outset, the Court notes that motions to reconsider are

4

appropriate only in rare circumstances:
The motion to reconsider would be appropriate where, for example, the
court has patently misunderstood a party, or has made a decision outside
the adversarial issues presented to the court by the parties, or has made an
error not of reasoning but of apprehension. A further basis for a motion to
reconsider would be a controlling or significant change in the law or facts
since the submission of the issue to the court. Such problems rarely arise
and the motion to reconsider should be equally rare.

5
6
7
8
9
10
11
12
13
14
15
16
17
18

Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va.
1983); see also, Sullivan v. Faras-RLS Group, Ltd., 795 F. Supp. 305, 308-09 (D. Ariz.
1992).
A motion for reconsideration should not be used to ask a court "to rethink what the
court had already thought through--rightly or wrongly". Above the Belt, 99 F.R.D. at
101; see also, Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F. Supp. 6, 7 (N.D.
Ill. 1983).
Respondents’ motion is devoid of the necessary showing in regards to this Court’s
determination that the state courts acted unreasonably in determining that counsel’s

19

decision was strategic. The appellate court relied on the trial court’s belief that the

20

decision was a reasonable tactical decision. The trial court’s decision, in turn, was based

21

on the trial court’s misunderstanding that the lesser-included instruction would have been

22

inconsistent with the defense strategy. Because this was the only stated basis for the trial

23

court’s ruling, and it was incorrect, the determination was unreasonable. The Court will

24

not rethink this decision here.

25

Nonetheless, Respondents have made the necessary showing to merit

26

reconsideration on the prejudice prong of this Court’s ruling. This Court determined that

27

prejudice under the controlling Supreme Court precedent in Strickland v. Washington,

28
-2-

1

466 U.S. 668 (1984), was demonstrated because, had it been requested, the jury

2

instruction was supported by the evidence and the trial court acknowledged that it would

3

have been given. As Respondents correctly argue, contrary to this Court’s finding,

4

Petitioner must show not just that the instruction would have been given, but that a

5

reasonable probability exists that, had the jurors been instructed on the lesser, they would

6

have convicted of that offense and not the charged offense. Petitioner does not contest

7

this argument in his response to the motion for reconsideration. See (Doc. 30).

8

This Court is bound to presume that the jury applied the correct legal standards in

9

reaching its conclusion. See Strickland, 466 U.S. at 695 (explaining that in assessing

10

whether a defendant was prejudiced by ineffective assistance, a court should presume that

11

the decisionmaker “reasonably, conscientiously, and impartially” applied the correct legal

12

standards). In this case, it would be speculative to reach the conclusion that there was a

13

reasonable probability the outcome would have been different simply because the lesser

14

included instruction would have been given because this would presume the jurors failed

15

to follow their instructions in convicting Petitioner when there was a reasonable doubt

16
17
18
19
20
21
22
23
24
25
26
27

that he committed the charged offense. See e.g. Lee v. Schriro, 327 Fed.Appx. 699, 701
(9th Cir. 2009) (“Because the jury was instructed on robbery, yet convicted Lee of armed
robbery, there is no reason to conclude that the verdict would have been different had the
jury also been instructed on the even lesser offense of theft.”). Thus, even if counsel’s
performance was deficient under Strickland’s first prong, Petitioner has failed to
demonstrate prejudice under the relevant controlling federal law, and he is not entitled to
relief on this Ground.
Accordingly,
IT IS ORDERED:
(1) Respondents’ motion for reconsideration and to amend/alter the judgment is
GRANTED in part. (Doc. 20.)
(2) This Court’s Order (Doc. 18) entered on September 20, 2013 is AMENDED to

28
-3-

1
2

reflect the denial of Ground Four with prejudice for the reasons stated above.
(3) This Court’s Order is FURTHER AMENDED to vacate this Court’s order

3
4
5
6

directing the state court to vacate Count 1 of Petitioner’s conviction.
(4) The Clerk of Court shall amend the Judgment (Doc. 19) to reflect that the
Petition (Doc. 1) is denied with prejudice and the action is dismissed in its entirety.1

7
8
Dated this 14th day of May, 2014.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Petitioner’s motion for a certificate of appealability (Doc. 23) is denied. Before
Petitioner can appeal this Court's judgment, a certificate of appealability must issue. See 28
U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate Procedure 22(b)
requires the district court that rendered a judgment denying the petition made pursuant to 28
U.S.C. §2254 to "either issue a certificate of appealability or state why a certificate should not
issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the
applicant has made a substantial showing of the denial of a constitutional right." In the
certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C.
§2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is
debatable among reasonable jurists, if courts could resolve the issues differently, or if the issue
deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon
review of the record in light of the standards for granting a certificate of appealability, the Court
concludes that a certificate shall not issue as the resolution of the petition is not debatable among
reasonable jurists and does not deserve further proceedings.

-4-