Ogburn v. Wengler et al

Filing 26

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Petitioner's Motion for Reconsideration 23 is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KEITH ALAN OGBURN,
Case No. 1:12-cv-00290-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
TIM WENGLER and IDAHO
ATTORNEY GENERAL LAWRENCE
WASDEN,
Respondents.

The parties are familiar with the facts of this case as set forth in the Court’s
Memorandum Decision and Order entered on August 27, 2013, in which the Court denied
Keith Alan Ogburn’s Petition for Writ of Habeas Corpus and dismissed this action with
prejudice. (Dkt. 20.) Petitioner has filed a Motion to Alter or Amend the Judgment under
Federal Rule of Civil Procedure 59(e). (Dkt. 23.) For the reasons that follow, the Court
will deny the Motion.
1.

Standard of Law
Reconsideration of a final judgment under Rule 59(e) is an “extraordinary remedy,

to be used sparingly in the interests of finality and conservation of judicial resources.”
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal quotation marks
omitted). A losing party may not use a Rule 59(e) motion to relitigate old matters or to
MEMORANDUM DECISION AND ORDER - 1

raise arguments that could have been raised before the entry of judgment. Sch. Dist. No.
1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). As a result,
there are four limited grounds upon which a motion for reconsideration may be granted:
(1) the motion is necessary to correct manifest errors of fact or law; (2) the moving party
presents newly discovered evidence; (3) reconsideration is necessary to prevent manifest
injustice; or (4) there is an intervening change in the law. Turner v. Burlington N. Santa
Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
2.

Discussion
In denying the Petition, the Court determined, under de novo review, that

Petitioner could not show that he suffered prejudice, as required by Strickland v.
Washington, 466 U.S. 668 (1984), from the allegedly deficient performance of trial
counsel.1 (Dkt. 20 at 25.) Petitioner takes issue primarily with the following portion of the
Court’s analysis:
None of the potential witnesses could testify as to the precise
time Petitioner left the graduation ceremony, and only Ms.
Maestas [Petitioner’s girlfriend] estimated the time with any
degree of certainty. According to Ms. Maestas, when she and
Petitioner left the ceremony together it “[h]ad to be close to
10:00 p.m.,” after which they had a 20 to 30 minute argument.
(State’s Lodging C-4, p. 106.) If that testimony is accurate,
Petitioner could not have participated in the crimes, which
took place around 10:00. However, because Ms. Maestas was
Petitioner’s girlfriend at the time, the jury would have viewed
her testimony with a healthy degree of skepticism—as they
1

The Court assumed, without deciding, that counsel performed deficiently. (Dkt. 20 at

25.)
MEMORANDUM DECISION AND ORDER - 2

would the testimony of Petitioner’s family. Moreover, Ms.
Maestas herself stated she was not paying particular attention
to the time. Ms. Maestas’s roommate testified that, although
she did not know exactly what time Petitioner and his
girlfriend came back from the graduation ceremony, she
believed it was closer to 9:00 or 9:30, which would have
allowed Petitioner time to participate in the robbery. Given
the choice between Petitioner’s girlfriend and her roommate,
particularly with all of the other evidence against Petitioner,
the jury would have been much more likely to believe the
roommate.
(Id. at 25-26.)
Petitioner points to the testimony of Carol Fitzgerald, who was at the graduation
ceremony and reception but left while Petitioner was still there. (Memo. in Supp., Dkt.
23-1, at 5-7.) Ms. Fitzgerald initially testified at the evidentiary hearing that she left the
graduation sometime after 9:00. (State’s Lodging C-4 at 92.) She later stated that “it was
at least 9:30.” (Id. at 93.) Ms. Fitzgerald stated that she did not know when Petitioner left,
but that “he was there through the ceremony and at least for a few minutes after the
ceremony.” (Id. at 93, 96.)
As can be seen from this testimony, Ms. Fitzgerald could not be certain of the time
Petitioner left the ceremony and reception, but she did say that it must have been
sometime between 9:00 and “at least 9:30” because he was still there when she left.
However, this testimony does not place Petitioner at the graduation at 10:00 p.m., the time
of the robbery. It is consistent with the testimony of Ms. Maestas’s roommate, who
testified that Petitioner and his girlfriend came back to the residence “about 9:00, 9:30 or

MEMORANDUM DECISION AND ORDER - 3

so.” (State’s Lodging C-4 at 158.)
Thus, as noted by the Court, Petitioner still would have had time to meet up with
his co-defendants and commit the robbery for which he was convicted. And the
jury—even if it had heard from Ms. Fitzgerald—would most likely still have voted to
convict considering the circumstances surrounding Petitioner’s arrest:
Petitioner was found lying in a field close to where the
fleeing suspects had crashed into the irrigation canal, and his
two co-defendants (one of whom was wearing a blue
bandanna exactly like the one worn by one of the robbers)
were found nearby. Petitioner’s clothes were wet and muddy,
as if he had recently been in the water, but there was no
standing water in the field where he was found. Petitioner’s
claim that his ankles and shins got “a little wet” when he
stepped in a ditch on his way to the field would not have
helped him; it was contrary to the evidence at trial. The odds
that Petitioner just ended up in the same area, at the same
time, as two people he knew who were there for different
reasons—all of them wet from the waist down and close to a
location where three fleeing robbery suspects had crashed
their car into an irrigation canal—are close to zero.
(Dkt. 20 at 26.)
In addition, Special Agent Greg Johanson with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives testified before the grand jury—and at the postconviction
evidentiary hearing—that Petitioner had confessed his involvement in the robbery during
Johanson’s investigation into a separate crime. (State’s Lodging C-4 at 8-12.) Though the
prosecution did not call Johanson at trial, it almost certainly would have called him in

MEMORANDUM DECISION AND ORDER - 4

rebuttal if Petitioner had presented an alibi defense.2
Finally, Petitioner claims that he did not know his co-defendants at all and attacks
the Court’s analysis on that basis. However, there is evidence in the record that prior to
his arrest Petitioner in fact did know the other two men involved in the robbery. First, the
girlfriend of one of the men stated that the men knew each other, though Petitioner
attacks her credibility and the methods used by police in speaking with her. (Reply, Dkt.
25, at 3). Second, there is Petitioner’s confession to Special Agent Johanson, whose
testimony Petitioner has failed to discredit. Petitioner obviously knew the men—at least at
some level—if he participated in a robbery with them.
CONCLUSION
Petitioner did not show a reasonable possibility that the outcome of his trial would
have been different if counsel had pursued an alibi defense, and nothing he has presented
in the instant Motion meets the high standard required for relief under Rule 59(e).
Petitioner has not carried his burden to show a clear error of law or fact, manifest
injustice, or any other basis for reconsideration. Accordingly, the Court will deny
Petitioner’s Rule 59(e) Motion.

2

Petitioner contends that the alleged confession obtained by Special Agent Johanson
“occurred after Petitioner’s invocation [of his right to remain silent] and before the appointment
of counsel” and that, therefore, the prosecution could not have used it unless Petitioner testified
on his own behalf. (Reply at 5-7.) However, Petitioner has not raised a claim of a Fifth
Amendment violation in these proceedings. In the absence of such a claim, the Court will not
speculate about the prosecution’s decision not to call Johanson.
MEMORANDUM DECISION AND ORDER - 5

ORDER
IT IS ORDERED that Petitioner’s Motion for Reconsideration (Dkt. 23) is
DENIED.

DATED: March 12, 2014

Honorable B. Lynn Winmill
Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER - 6