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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Heriberto F Catarino,
Petitioner,

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ORDER

v.

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No. CV-16-00012-TUC-RM

Charles Ryan, et al.,

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Respondents.

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On January 16, 2018, this Court dismissed Petitioner Heriberto F. Catarino’s

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Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 after finding that Petitioner’s

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claims were procedurally defaulted and that Petitioner had failed to establish cause and

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prejudice or a fundamental miscarriage of justice to excuse the procedural default. (Doc.

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30.) Pursuant to this Court’s Order (Doc. 30), the Clerk of Court entered judgment and

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closed this case (Doc. 31).

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Currently pending before the Court is Petitioner’s Motion for Reconsideration

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(Doc. 32). In the Motion, Petitioner argues that “the matter of ‘cumulative error’ was not

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addressed as a separate and distinct ground that, collectively, supersedes its component

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grounds which were procedurally defaulted.” (Id. at 1.)

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I.

Standard of Review

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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

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discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J,

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Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv

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7.2(g) (motions for reconsideration will ordinarily be denied “absent a showing of

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manifest error or a showing of new facts or legal authority that could not have been

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brought to [the Court’s] attention earlier with reasonable diligence”).

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

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court had already thought through—rightly or wrongly.” Defenders of Wildlife, 909 F.

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Supp. at 1351 (internal quotation marks omitted); see also LRCiv 7.2(g) (motions for

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reconsideration shall not “repeat any oral or written argument made by the movant in

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support of or in opposition to the motion that resulted in the Order”). Mere disagreement

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with a previous order is an insufficient basis for reconsideration. See Leong v. Hilton

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Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).

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II.

Motions for

Discussion

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Because Petitioner’s § 2254 Petition was filed after April 24, 1996, the effective

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date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case

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is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

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A § 2254 petition subject to AEDPA cannot be granted unless it appears that (1)

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the petitioner has exhausted all available state-court remedies, (2) there is an absence of

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available state corrective process, or (3) state corrective process is ineffective to protect

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the rights of the petitioner. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501

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U.S. 722, 731 (1991) (discussing exhaustion requirement).

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procedurally defaulted and thus precluded from federal review if (1) the claim was not

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presented in state court and no state remedies are currently available because the court to

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which the petitioner would be required to present the claim in order to meet the

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exhaustion requirement would find the claims procedurally barred under state law, or (2)

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the petitioner raised the claim in state court but the state court rejected the claim based on

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“independent” and “adequate” state procedural grounds. See Coleman, 501 U.S. at 729-

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A claim is considered

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32, 735 n.1. Federal courts will consider a procedurally defaulted claim only if the

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petitioner demonstrates cause and prejudice or a fundamental miscarriage of justice. Id.

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at 750.

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external to the defense impeded [his] efforts to comply with the State’s procedural rule.”

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Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate prejudice, a petitioner

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must show that the constitutional violations alleged in his § 2254 Petition “worked to his

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actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152, 170 (1982)

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(emphasis omitted). To establish that a fundamental miscarriage of justice would occur if

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a claim were not heard on the merits in federal court, a petitioner must demonstrate that

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“a constitutional violation has probably resulted in the conviction of one who is actually

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innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995).

To demonstrate cause, a petitioner must show that “some objective factor

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In its January 16, 2018 Order, this Court found that Petitioner’s claims were

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procedurally defaulted and that Petitioner had failed to establish cause and prejudice or a

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fundamental miscarriage of justice to excuse the procedural default. (Doc. 30 at 3; see

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also Doc. 24 at 7-12.)

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concerning cumulative error do not affect the Court’s conclusion that Petitioner’s claims

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are procedurally defaulted. Petitioner cites United States v. Preston, 873 F.3d 829 (9th

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Cir. 2017) for the proposition that the Ninth Circuit has recognized “cumulative error . . .

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as a legitimate ground to vacate a sentence or conviction even though the cumulative

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error, itself, is comprised of lesser errors which are procedurally defaulted.” (Doc. 32 at

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1-2.) Contrary to Plaintiff’s characterization of the opinion, Preston does not address the

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issue of procedural default. In Preston, the Ninth Circuit reversed a federal conviction

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because the cumulative effect of trial errors prejudiced the defendant. 873 F.3d at 846.

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AEDPA’s exhaustion requirements do not apply to direct appeals of federal convictions,

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and thus the Ninth Circuit did not address those requirements in Preston. AEDPA’s

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exhaustion requirements do apply to Petitioner’s § 2254 claims, and Petitioner does not

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dispute that his claims are procedurally defaulted.

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cumulative error do not demonstrate cause and prejudice or a miscarriage of justice to

The arguments in Petitioner’s Motion for Reconsideration

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Petitioner’s arguments about

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excuse the procedural default of his claims.

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion for Reconsideration (Doc. 32) is

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denied. This case is to remain closed.
Dated this 31st day of January, 2018.

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