Catarino #290238 v. Ryan et al
Filing
33
ORDER DENYING Petitioner's 32 Motion for Reconsideration. This case is to remain closed. Signed by Judge Rosemary Marquez on 1/31/18. (BAC)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Heriberto F Catarino,
Petitioner,
10
11
ORDER
v.
12
No. CV-16-00012-TUC-RM
Charles Ryan, et al.,
13
Respondents.
14
15
On January 16, 2018, this Court dismissed Petitioner Heriberto F. Catarino’s
16
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 after finding that Petitioner’s
17
claims were procedurally defaulted and that Petitioner had failed to establish cause and
18
prejudice or a fundamental miscarriage of justice to excuse the procedural default. (Doc.
19
30.) Pursuant to this Court’s Order (Doc. 30), the Clerk of Court entered judgment and
20
closed this case (Doc. 31).
21
Currently pending before the Court is Petitioner’s Motion for Reconsideration
22
(Doc. 32). In the Motion, Petitioner argues that “the matter of ‘cumulative error’ was not
23
addressed as a separate and distinct ground that, collectively, supersedes its component
24
grounds which were procedurally defaulted.” (Id. at 1.)
25
I.
Standard of Review
26
Motions for reconsideration should be granted only in rare circumstances. See
27
Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995).
28
“Reconsideration is appropriate if the district court (1) is presented with newly
1
discovered evidence, (2) committed clear error or the initial decision was manifestly
2
unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J,
3
Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv
4
7.2(g) (motions for reconsideration will ordinarily be denied “absent a showing of
5
manifest error or a showing of new facts or legal authority that could not have been
6
brought to [the Court’s] attention earlier with reasonable diligence”).
7
reconsideration should not be used for the purpose of asking a court “to rethink what the
8
court had already thought through—rightly or wrongly.” Defenders of Wildlife, 909 F.
9
Supp. at 1351 (internal quotation marks omitted); see also LRCiv 7.2(g) (motions for
10
reconsideration shall not “repeat any oral or written argument made by the movant in
11
support of or in opposition to the motion that resulted in the Order”). Mere disagreement
12
with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton
13
Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).
14
II.
Motions for
Discussion
15
Because Petitioner’s § 2254 Petition was filed after April 24, 1996, the effective
16
date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case
17
is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).
18
A § 2254 petition subject to AEDPA cannot be granted unless it appears that (1)
19
the petitioner has exhausted all available state-court remedies, (2) there is an absence of
20
available state corrective process, or (3) state corrective process is ineffective to protect
21
the rights of the petitioner. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501
22
U.S. 722, 731 (1991) (discussing exhaustion requirement).
23
procedurally defaulted and thus precluded from federal review if (1) the claim was not
24
presented in state court and no state remedies are currently available because the court to
25
which the petitioner would be required to present the claim in order to meet the
26
exhaustion requirement would find the claims procedurally barred under state law, or (2)
27
the petitioner raised the claim in state court but the state court rejected the claim based on
28
“independent” and “adequate” state procedural grounds. See Coleman, 501 U.S. at 729-
-2-
A claim is considered
1
32, 735 n.1. Federal courts will consider a procedurally defaulted claim only if the
2
petitioner demonstrates cause and prejudice or a fundamental miscarriage of justice. Id.
3
at 750.
4
external to the defense impeded [his] efforts to comply with the State’s procedural rule.”
5
Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate prejudice, a petitioner
6
must show that the constitutional violations alleged in his § 2254 Petition “worked to his
7
actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170 (1982)
8
(emphasis omitted). To establish that a fundamental miscarriage of justice would occur if
9
a claim were not heard on the merits in federal court, a petitioner must demonstrate that
10
“a constitutional violation has probably resulted in the conviction of one who is actually
11
innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
To demonstrate cause, a petitioner must show that “some objective factor
12
In its January 16, 2018 Order, this Court found that Petitioner’s claims were
13
procedurally defaulted and that Petitioner had failed to establish cause and prejudice or a
14
fundamental miscarriage of justice to excuse the procedural default. (Doc. 30 at 3; see
15
also Doc. 24 at 7-12.)
16
concerning cumulative error do not affect the Court’s conclusion that Petitioner’s claims
17
are procedurally defaulted. Petitioner cites United States v. Preston, 873 F.3d 829 (9th
18
Cir. 2017) for the proposition that the Ninth Circuit has recognized “cumulative error . . .
19
as a legitimate ground to vacate a sentence or conviction even though the cumulative
20
error, itself, is comprised of lesser errors which are procedurally defaulted.” (Doc. 32 at
21
1-2.) Contrary to Plaintiff’s characterization of the opinion, Preston does not address the
22
issue of procedural default. In Preston, the Ninth Circuit reversed a federal conviction
23
because the cumulative effect of trial errors prejudiced the defendant. 873 F.3d at 846.
24
AEDPA’s exhaustion requirements do not apply to direct appeals of federal convictions,
25
and thus the Ninth Circuit did not address those requirements in Preston. AEDPA’s
26
exhaustion requirements do apply to Petitioner’s § 2254 claims, and Petitioner does not
27
dispute that his claims are procedurally defaulted.
28
cumulative error do not demonstrate cause and prejudice or a miscarriage of justice to
The arguments in Petitioner’s Motion for Reconsideration
-3-
Petitioner’s arguments about
1
excuse the procedural default of his claims.
2
Accordingly,
3
IT IS ORDERED that Petitioner’s Motion for Reconsideration (Doc. 32) is
4
5
denied. This case is to remain closed.
Dated this 31st day of January, 2018.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?