Quinteros v. Paramo

Filing 23

ORDER Denying 21 Motion for Reconsideration. Signed by Judge Janis L. Sammartino on 9/18/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LIONEL QUINTEROS,

Case No.: 16-CV-583 JLS (JLB)
Petitioner,

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v.

ORDER DENYING MOTION FOR
RECONSIDERATION

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DANIEL PARAMO, Warden,

(ECF No. 21)

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Respondent.

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Presently before the Court is Petitioner’s Motion to Permit Late Filing of Objections

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(“MTN”, ECF No. 21). The Court construed Petitioner’s motion as one for reconsideration

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of the Court’s Order adopting Magistrate Judge Burkhardt’s Report and Recommendation.

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(ECF No. 22.) Respondent did not file a Reply to Petitioner’s objections. After considering

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Petitioner’s arguments and the law, the Court DENIES Petitioner’s motion.

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BACKGROUND

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Judge Burkhardt’s Report and Recommendation (“R&R”) contains a thorough and

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accurate recitation of the factual and procedural histories underlying the instant motion.

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(See ECF No. 16, at 1–6.) The R&R recommended denying Petitioner’s Petition for Writ

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of Habeas Corpus. (Id. at 23–24.) Any objections to the R&R were due by May 29, 2017.

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(Id. at 24.) No objections were filed by this date, and on June 21, 2017, the Court adopted

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the R&R. (ECF No. 17.) On July 14, 2017, Petitioner filed a Motion to Permit Late Filing
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of Objections. (ECF No. 21.) Due to Petitioner’s untimely filing, the Court construed

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Petitioner’s motion as one for reconsideration. (ECF No. 22.) In his motion, Petitioner

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objects to various aspects of the R&R.1

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LEGAL STANDARD

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In the Southern District of California, a party may apply for reconsideration

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“[w]henever any motion or any application or petition for any order or other relief has been

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made to any judge and has been refused in whole or in part.” Civ. L.R. 7.1(i)(1). The

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moving party must provide an affidavit setting forth, inter alia, new or different facts and

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circumstances which previously did not exist. Id.

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Generally, reconsideration of a prior order is “appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision

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was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist.

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No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for reconsideration

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is in the “sound discretion” of the district court. Navajo Nation v. Norris, 331 F.3d 1041,

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1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may not raise new

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arguments or present new evidence if it could have reasonably raised them earlier. Kona

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Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th

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Cir. 1999)).

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ANALYSIS

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Petitioner outlines three objections to the R&R. (See generally MTN.) The Court
considers each in turn.

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First, Petitioner argues Judge Burkhardt erred in concluding Petitioner’s Sixth and

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Fourteenth Amendment rights were not violated by his co-defendant’s attack on counsel

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Petitioner’s objections are attached to his Motion. (See MTN 5–11.)
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during trial. (MTN 1–3.) Specifically, Petitioner argues he was prejudiced by the attack,

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and the “Magistrate [Judge] has not put forth any case law wherein a violent act by a

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defendant did not result in a prejudiced jury.” (Id. at 2.) Petitioner raises no new evidence

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or cites to any change in the law. Further, the Court finds no evidence Judge Burkhardt

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committed clear error or the R&R was manifestly unjust. Judge Burkhardt concluded the

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California Court of Appeal followed clearly established federal law in concluding the

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presumption of prejudice to Petitioner by the jurors’ exposure to extrinsic evidence (i.e. the

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attack on counsel) was rebutted by other evidence, which was collected by the trial court

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at an in camera review. (R&R 11.) Judge Burkhardt also concluded even if it were

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constitutional error not to declare a mistrial due to the jury’s exposure to extrinsic evidence,

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any such error would be harmless. (Id. at 12.) Judge Burkhardt found Petitioner has not

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shown that juror misconduct, if any, had a “substantial and injurious effect or influence in

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determining the jury’s verdict[]” under Brecht v. Abrahamson, 507 U.S. 619 (1993) (R&R

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12.) The Court agrees. Finally, Petitioner argues Juror Number Two’s statements proved

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Petitioner’s co-defendant’s attack on counsel affected the jury. (MTN 3.) The Court finds

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no clear error or manifest injustice in Judge Burkhardt’s conclusion that it was objectively

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reasonable for the trial court to determine Juror Number Two could be a fair and impartial

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juror based on the in camera review. (R&R 15.) Therefore, the Court DENIES Petitioner’s

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Motion on this claim.

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Second, Petitioner argues Judge Burkhardt erred in concluding Petitioner’s right to

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due process of law was not violated by being restrained during trial in front of the jury.

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(MTN 3–4.) Judge Burkhardt concluded Petitioner’s claim was procedurally defaulted

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because Petitioner did not challenge the use of physical restraints at trial and raised his

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challenge for the first time on appeal. (R&R 18.) In his motion, Petitioner argues he can

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show “cause and prejudice excusing the default” due to ineffective assistance of counsel.

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(MTN 3 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991); Clabourne v. Ryan, 745

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F.3d 362 (9th Cir. 2014)). Petitioner argues because his trial counsel failed to object to

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Petitioner’s restraints during trial, this amounts to ineffective assistance of counsel. (Id. at
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4.) Petitioner has not raised an ineffective assistance of counsel argument prior to the

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current motion. The Court finds there is no evidence Petitioner could not have reasonably

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raised this argument earlier and it is therefore improper under a motion for reconsideration.

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See Kona Enters., 229 F.3d at 890. Even if this argument was procedurally proper,

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Petitioner has not shown his counsel’s actions rose to the level of ineffective assistance of

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counsel under Strickland v. Washington, 466 U.S. 668. Petitioner merely states his

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counsel’s failure to object to the restraints was “below any objective standard of

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reasonableness, and prejudiced the Petitioner, in that he was lumped together with the mad

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actions of [his co-Defendant].” (MTN 4.) Accordingly, this argument fails.

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Petitioner also argues Judge Burkhardt erred in concluding even if Petitioner’s claim

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was not procedurally barred, or even if the use of physical restraints during trial violated

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Petitioner’s right to due process, any error was harmless. (R&R 18, 22.) Petitioner argues

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the use of restraints “clearly tainted the jury against the Petitioner[]” and unduly prejudiced

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him. (MTN 4–5.) Petitioner raises no new evidence or cites to any change in the law. The

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Court finds no clear error or manifest unjust in Judge Burkhardt’s conclusion of harmless

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error. Accordingly, the Court DENIES Petitioner’s Motion on this claim.

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Third, Petitioner argues the facts set forth in his Petition entitle him to an evidentiary

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hearing. (MTN 6.) Judge Burkhardt found Petitioner failed to satisfy 28 U.S.C.

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§ 2254(d) and denied Petitioner’s request for an evidentiary hearing. (R&R 23.) In his

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motion, Petitioner provides little argument to support his position and states he “contends

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he has put forth facts in his petition that entitle him to relief. Therefore, at a minimum, the

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Court should order an evidentiary hearing . . . .” (MTN 6.) Finding no basis to reconsider

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Judge Burkhardt’s decision denying an evidentiary hearing, the Court DENIES

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Petitioner’s Motion on this claim.

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CONCLUSION
Given the foregoing, the Court DENIES Plaintiff’s Motion for Reconsideration
(ECF No. 21).
IT IS SO ORDERED.
Dated: September 18, 2017

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