Armstrong v. Ryan et al

Filing 144

ORDER denying 126 Motion for Reconsideration. Signed by Judge Rosemary Marquez on 3/18/2019. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shad Daniel Armstrong,

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Petitioner,

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ORDER

v.

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No. CV-15-00358-TUC-RM

Charles L Ryan, et al.,

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Respondents.

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On February 14, 2019, the Court granted Petitioner Shad Daniel Armstrong’s

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motion for access to his relatives on the grounds that A.R.S. § 13-4433 does not apply to

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these federal habeas proceedings directly or through the adoption of its specific limitations

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under the federal Crime Victims’ Rights Act (“CVRA”). (Doc. 123.) Pending before the

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Court is Respondents’ motion for reconsideration. (Doc. 126.) As directed by the Court

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(Doc. 134), Petitioner filed a response on March 8, 2019 (Doc. 141). Crime victims S.A.,

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G.A., L.A., C.J., and J.W. (the “Victims”) filed a joinder in Respondents’ motion for

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reconsideration on March 15, 2019. (Doc. 143.)

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I.

Legal Standard

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Motions for reconsideration should be granted only in rare circumstances. See

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

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah Cnty.

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

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ordinarily be denied “absent a showing of manifest error or a showing of new facts or legal

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

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diligence.” LRCiv 7.2(g)(1).

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Pursuant to the Local Rules of Civil Procedure, “[n]o motion for reconsideration

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may repeat any oral or written argument made by the movant in support of or in opposition

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to the motion that resulted in the Order.” LRCiv 7.2(g)(1). Motions for reconsideration

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should not be used for the purpose of asking a court “to rethink what the court had already

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thought through—rightly or wrongly.” Defenders of Wildlife, 909 F. Supp. at 1351

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(internal quotation marks omitted). 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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II.

Discussion

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Respondents’ Motion for Reconsideration repeats arguments already considered

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and rejected by this Court, in violation of Rule 7.2(g)(1) of the Local Rules of Civil

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Procedure. Although Respondents’ violation of Rule 7.2(g)(1) is itself “grounds for denial

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of the motion,” LRCiv 7.2(g)(1), the Court will nevertheless analyze whether Respondents

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have identified any proper grounds for reconsideration.

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Reconsideration is not appropriate based upon newly discovered evidence or an

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intervening change in law, as Respondents do not identify any new evidence or intervening

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

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reasonable diligence. Respondents rely upon the same non-binding District of Arizona

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cases that they repeatedly relied upon in prior briefs. (Compare Doc. 126 at 6-9; with Doc.

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88 at 3; Doc. 94 at 10; Doc. 119 at 4-5.)1 The Court previously distinguished those cases,

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finding that no prior District of Arizona case addressing the victim contact issue presented

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Although Respondents did not previously cite the July 21, 2015 order in Chappel v.
Ryan, CV-15-478-PHX-SPL, they certainly could have with reasonable diligence.
Furthermore, the February 12, 2019 order in Bearup v. Ryan, CV-16-3357-PHX-SPL,
could have been brought to this Court’s attention prior to the Court’s issuance of the order
for which Respondents now seek reconsideration.
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“the complex factual issues alleged here: that the victims in the case are also family

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members who represent a potentially untapped and primary source of mitigation to which

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Petitioner was denied access by application of state law, and that Petitioner has now been

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informed that Petitioner’s mother refuses to receive correspondence from Petitioner’s

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defense team during federal habeas proceedings.” (Doc. 91 at 2-3.)

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Respondents argue that reconsideration is appropriate because the Court did not

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address two of Respondents’ arguments: that Petitioner’s motion fails to present a case or

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controversy, and that applying the Arizona Victims Bill of Rights (“VBR”), and

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specifically, A.R.S. § 13-4433, is consistent with the CVRA. To the extent Respondents

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are contending that the Court overlooked these matters, they are incorrect. The Court

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specifically rejected the latter argument in its February 14, 2019 order. (See Doc. 123 at 2

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(“The Court . . . rejects Respondents’ . . . argument that ‘informally’ enforcing the terms

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of the VBR in these proceedings is consistent with a liberal interpretation of the federal

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CVRA.”).) The Court implicitly rejected the former argument; the Court found that A.R.S.

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§ 13-4433 does not apply to these federal habeas proceedings, and thus it follows that there

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was no need for Petitioner to attempt to comply with A.R.S. § 13-4433 prior to bringing

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the victim contact issue before the Court. In any event, Petitioner did comply with the

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contact requirements of A.R.S. § 13-4433 in attempting to send a letter to Petitioner’s

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mother through the Attorney General’s office. (See Doc. 119 at 7; Doc. 21-8 at 32.) He

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also satisfies the Article III “injury-in-fact” standing requirement by alleging an intent to

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engage in a constitutionally protected course of conduct—asking a victim-relative directly

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for an interview—that is proscribed by a statute for which violations carry a credible threat

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of disciplinary action. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 163–65 (2014)

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(a threat of “administrative action, like arrest or prosecution,” is sufficient for Article III

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standing).

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Respondents argue that the Court erred in characterizing the VBR as a mere state

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procedural rule that could be set aside in federal court.

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Respondents are incorrect; in its February 14, 2019 order, the Court specifically recognized

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(Doc. 126 at 3.)

Again,

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the “procedural and substantive rights” that crime victims are granted under the VBR.

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(Doc. 123 at 1.) Further, Respondents inaccurately characterize this Court’s order as

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ignoring provisions of the Arizona Constitution, which provides victims the right to refuse

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an interview, but, notably, does not prohibit defendants or defense counsel from directly

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contacting victims. Compare A.R.S. Const. Art. 2 § 2.1(A)(5) with A.R.S. § 13-4433(B)

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and Rule 39, Ariz. R. Crim. P. Only Arizona’s implementing legislation and state rules

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prohibit direct contact with victims; the substantive rights embodied in the state

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constitution do not. The State also cites no authority for the proposition that a state

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constitution can affect federal judicial proceedings. Finally, Respondents have not

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identified any authority, much less any binding authority, holding that A.R.S. § 13-4433 is

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directly controlling in federal habeas proceedings, nor have they identified any clear error

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or manifest injustice in the Court’s refusal to adopt the specific limitations of A.R.S. § 13-

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4433 into the protections already afforded habeas victims under the CVRA.2

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As non-parties, the Victims do not have a right to directly file, or join in

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Respondents’ filing, in this habeas proceeding. While they may assert the rights granted to

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them under the CVRA, see 18 U.S.C. § 3771(b)(2)(B), the Victims’ motion does not assert

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or ask for enforcement of a specific right under the CVRA. Nonetheless, the Court

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recognizes that it is the Court’s duty to ensure victims’ rights under the CVRA are protected

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in this habeas proceeding. 18 U.S.C. § 3771(b)(2)(A). The Court notes that the holding of

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its February 14, 2019 order does not mean that defense counsel’s conduct toward victims

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in this case is without constraint. The CVRA establishes “the right to be treated with

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fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8).

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The Court expects all counsel in this case to comply with the protections provided by the

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CVRA.

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....

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....

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None of the cases relied upon by Respondents hold that A.R.S. § 13-4433 directly
applies to federal habeas proceedings; in those cases, the court exercised discretion to apply
A.R.S. § 13-4433 for purposes of effectuating the CVRA.
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III.

Conclusion

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Respondents have failed to show that reconsideration is appropriate based on newly

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

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School Dist. No. 1J, 5 F.3d at 1263. Accordingly, their Motion for Reconsideration will

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be denied.

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IT IS ORDERED that the Motion for Reconsideration (Doc. 126) is denied.

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Dated this 18th day of March, 2019.

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