Landis v. Uttecht

Filing 34

ORDER DENYING 26 Plaintiff's Motion for Reconsideration. Plaintiffs claims that he was denied the right to present evidence, the right to present witnesses, and the right to due process are DISMISSED WITHOUT PREJUDICE as a second or successiv e habeas claim. The Court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. Signed by Judge Rosanna Malouf Peterson. (SK, Case Administrator)**10 PAGE(S), PRINT ALL**(James Landis, Prisoner ID: 361654)

1
2
3

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

4

Oct 19, 2018
SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF WASHINGTON

6
7

JAMES JOEL LANDIS,
NO: 2:17-CV-335-RMP
Plaintiff,

8
9
10
11

ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.
JEFFERY A. UTTECHT,
Defendant.

12
13

BEFORE THE COURT is Petitioner James Joel Landis’s Motion for

14

Reconsideration, ECF No. 26. Mr. Landis moves “for a full panel review of the

15

Order Denying Plaintiff’s Petition for Writ of Habeas Corpus.” Id. The Court has

16

considered the arguments, the record, and the pleadings, and is fully informed

17
18

BACKGROUND
In 2012, Mr. Landis was convicted by a jury in Okanogan County Superior

19

Court of Attempted First Degree Murder, Assault in the Second Degree, and

20

Harassment with Threats to Kill. ECF No. 1 at 1. He was sentenced to 348.75

21

months of incarceration. Id. Mr. Landis sought direct review of his conviction, but
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 1

1

his conviction was affirmed by the Washington State Court of Appeals and his

2

petition for review in the Supreme Court of Washington was denied. Id. at 2. Mr.

3

Landis filed for state collateral review in 2016 and again in 2017, but both were

4

denied by the state appellate court. Id. at 3–4.

5

After exhausting his state remedies, Mr. Landis filed for federal habeas relief

6

in September of 2017. ECF No. 1. In his petition, Mr. Landis argued that he

7

received ineffective assistance of counsel and was denied his right to present a

8

defense at his trial. Id. at 6–19, 21. In an order issued August 10, 2018, this Court

9

denied Mr. Landis’s petition for a writ of habeas corpus. ECF No. 24. This Court

10

found that Mr. Landis had not exhausted his claim that he was denied a right to

11

present a defense, and dismissed that claim without reaching the merits. Id. at 4–5.

12

Further, this Court held that Mr. Landis did not prove that he was denied effective

13

assistance of counsel. Id. at 12.

14

Mr. Landis now moves this Court to reconsider its order denying Mr. Landis

15

his petition for a writ of habeas corpus. ECF No. 26. Mr. Landis reasserts that he

16

was denied his right to present a defense and an ineffective assistance of counsel

17

claim. Id. at 2. Additionally, Mr. Landis argues, for the first time, that he was

18

denied the right to present evidence, the right to present witnesses, and the right to

19

due process. Id.

20

/ / /

21

/ / /
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 2

1
2
3

DISCUSSION
Motion for Reconsideration
No single Federal Rule of Civil Procedure governs a “motion for

4

reconsideration.” If a party files a motion for reconsideration, it is construed as

5

either a motion to alter or amend a judgment under Rule 59(e) or a motion for relief

6

from a judgment or order under Rule 60(b). Am. Ironworks & Erectors, Inc. v. N.

7

Am. Constr. Corp., 248 F.3d 892, 898–899 (9th Cir. 2001). The motion for

8

reconsideration will be construed as a motion to alter or amend a judgment under

9

Rule 59(e) if the motion is filed within 28 days of the entry of judgment. Id; see

10

also Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no

11

later than 28 days after the entry of the judgment.”). If filed outside this 28-day

12

window, the motion for reconsideration will be treated as a motion for relief from a

13

final judgment or order under Rule 60(b). Am. Ironworks & Erectors, Inc., 248 F.3d

14

at 898–899.

15

Here, Mr. Landis filed his motion for reconsideration on August 22, 2018.

16

ECF No. 26. The judgment he moves this Court to reconsider was entered on

17

August 10, 2018. ECF Nos. 24 & 25 (order and judgment). Mr. Landis filed his

18

motion within the 28-day timeline articulated in Rule 59(e). Fed. R. Civ. P. 59(e).

19

Thus, this Court will construe Mr. Landis’s motion for reconsideration as a motion

20

to alter or amend a judgment under Rule 59(e). Am Ironworks & Erectors, Inc., 248

21

F.3d at 898–899.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 3

1
2

Rule 59(e) Analysis
Motions under Rule 59(e) are only granted in the presence of highly unusual

3

circumstances. McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). It is

4

“an extraordinary remedy that should be used sparingly.” Id. at 1255 n.1. There are

5

four grounds upon which a Rule 59(e) motion for reconsideration may be granted:

6

(1) the moving party demonstrates that the motion is necessary to correct “manifest

7

errors of law or fact upon which the judgment is based”; (2) the moving party has

8

newly discovered or previously unavailable evidence to present; (3) the motion’s

9

granting is necessary to prevent manifest injustice; (4) reconsideration is justified by

10

an intervening change in controlling law. Id.

11

In his motion, Mr. Landis does not indicate which of these four grounds upon

12

which his motion stands. ECF No. 26. He argues his counsel violated several of his

13

constitutional rights under the Sixth and Fourteenth Amendments. Id. at 1–2. He

14

does not argue that there is newly available evidence to consider or that an

15

intervening change in controlling law justifies reconsideration. Thus, the Court

16

construes his motion to argue that this Court’s order is based on “manifest errors of

17

law or fact,” or that the motion’s granting is necessary to prevent manifest injustice.

18

McDowell, 197 F.3d at 1255 n.1.

19
20

In this Court’s order denying Mr. Landis a petition for a writ of habeas corpus,
this Court considered Mr. Landis’s claims that he was denied the right to present a

21
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 4

1

defense, and was denied effective assistance of counsel at trial. ECF No. 24.

2

Through the lens of a Rule 59(e) review, the Court reconsiders Mr. Landis’s claims.

3

A. Right to Present a Defense Claim

4

This Court did not consider the substance of Mr. Landis’s claim that he was

5

denied his right to present a defense because Mr. Landis did not exhaust this claim in

6

his state court appeals. ECF No. 24 at 4–5. Mr. Landis conceded that he did not

7

properly exhaust this claim. ECF No. 17 at 30–31.

8

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires

9

petitioners to exhaust state court remedies before seeking federal habeas review. 28

10

U.S.C. § 2254(b)(1). If the petitioner failed to exhaust his state court remedies,

11

federal courts may not review a petitioner’s claim. James v. Borg, 24 F.3d 20, 24

12

(9th Cir. 1994). The purpose of exhaustion is to give state courts the first

13

opportunity to remedy constitutional violations before the petitioner can enter

14

federal court. Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981).

15

Mr. Landis conceded that he did not properly exhaust his claim of denial of

16

his right to present a defense. ECF No. 17 at 30–31. He acknowledges that he did

17

not present this claim in his direct appeal or his first collateral state appeal. Id.; see

18

also ECF No. 1 at 2–3. Thus, Mr. Landis has failed to show that this Court’s ruling

19

on his right to present a defense claim is based on manifest errors in law or fact or

20

that overturning the ruling is necessary to prevent a manifest injustice. McDowell,

21
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 5

1

197 F.3d at 1255 n.1. The Court denies Mr. Landis’s motion for reconsideration

2

regarding his claim on the right to present a defense.

3

B. Ineffective Assistance of Counsel Claim

4

In this Court’s order denying Mr. Landis’s petition for writ of habeas corpus,

5

ECF No. 24, the Court considered Mr. Landis’s ineffective assistance of counsel

6

claim. ECF No. 24 at 5–12. This Court first explained that it must review Mr.

7

Landis’s petition through the lens of the AEDPA, which prevents a federal court

8

from overturning a previously-adjudicated claim in a state court proceeding unless

9

the decision was contrary to, or involved an unreasonable application of, clearly

10

established federal law as determined by the United States Supreme Court, or the

11

decision was based on an unreasonable determination of the facts. Id. at 5; 28

12

U.S.C. § 2254(d). This Court identified the standard for ineffective assistance of

13

counsel claims in federal habeas proceedings, which is that the state court’s ruling

14

was “so lacking in justification that there was an error well understood and

15

comprehended in existing law beyond any possibility for fairminded disagreement.”

16

ECF No. 24 at 5; Harrington v. Richter, 562 U.S. 86, 102 (2011).

17

This Court then identified the two-part Strickland test for evaluating an

18

ineffective assistance of counsel claim. First, the Court considered whether the

19

assistance of Mr. Landis’s was reasonable in light of all the circumstances. ECF No.

20

24 at 8; Strickland v. Washington, 466 U.S. 668, 688 1(1984). Second, the Court

21

considered whether any errors made by Mr. Landis’s counsel deprived Mr. Landis of
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 6

1

a fair trial, thereby prejudicing Mr. Landis. ECF No. 24 at 8; Strickland, 466 U.S. at

2

687. This Court applied the two-part Strickland test to Mr. Landis’s claims in light

3

of the deferential review mandated by AEDPA. ECF No. 24 at 12; 28 U.S.C. §

4

2254(d).

5

Mr. Landis made eight sub-claims within his ineffective assistance of counsel

6

claim. ECF No. 24 at 9–10. Together, these eight sub-claims essentially argued that

7

Mr. Landis’s counsel failed to explore or present to the jury the best defense theory

8

available to Mr. Landis. Id. This Court noted that the Washington State Appellate

9

Court denied Mr. Landis’s ineffective assistance of counsel claim because he could

10

not prove that his counsel acted deficiently or that Mr. Landis was in any way

11

prejudiced by his counsel’s actions. ECF No. 24 at 12. Applying Strickland and

12

AEDPA, this Court found the state appellate court’s decision reasonable considering

13

all the circumstances. ECF No. 24 at 12. This Court held that the state appellate

14

court’s decision that Mr. Landis failed to prove that his counsel acted deficiently or

15

that Mr. Landis was prejudiced by his counsel’s actions was not contrary to clearly

16

established federal law or based on an unreasonable determination of the facts. Id.;

17

28 U.S.C. § 2254(d). Therefore, this Court found that Mr. Landis failed to prove

18

any constitutional violation, and subsequently denied Mr. Landis’s petition for a writ

19

of habeas corpus. ECF No. 24 at 12.

20
21

Mr. Landis argues that this Court’s order denying him a petition for writ of
habeas corpus denied him certain constitutional rights. ECF No. 26 at 1–2. Mr.
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 7

1

Landis repeats certain arguments that were already rejected by the state appellate

2

court and this Court: namely, that Mr. Landis’s counsel did not pursue a defense

3

theory regarding Mr. Landis’s mental disorder or use of drugs and alcohol during the

4

commission of the crime. Id. at 2. By repeating these arguments that were already

5

rejected by the state appellate court and this Court, Mr. Landis fails to show how this

6

Court’s order was based on manifest errors of law or fact, or will result in a manifest

7

injustice to Mr. Landis. McDowell, 197 F.3d at 1255 n.1. Mr. Landis has not shown

8

that his case fits the highly unusual circumstances in which a court should grant a

9

motion for reconsideration. Id. at 1255. Thus, Mr. Landis’s motion under Rule

10

59(e) is denied.

11

Additional Claims in Motion for Reconsideration

12

In addition to asking this Court to reconsider its decision on Mr. Landis’s

13

ineffective assistance of counsel claim, Mr. Landis also asks this Court to reconsider

14

several claims it did not fully consider in its order, including the rights to present

15

evidence and witnesses on one’s behalf, as well as a due process claim. ECF No. 26

16

at 2.

17

AEDPA bars prisoners from second or successive habeas petitions in federal

18

court, unless the new claims rely on new rules of constitutional law made retroactive

19

to cases on collateral review by the Supreme Court, or the factual predicate for the

20

new claims could not have been previously discovered through the exercise of due

21

diligence and the facts underlying the claim would be sufficient to establish that no
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 8

1

reasonable factfinder would have found the petitioner guilty of the underlying

2

offense. 28 U.S.C. § 2244(b)(2). Before a petitioner may file a second or successive

3

habeas petition, the petitioner must move the court of appeals for an order

4

authorizing the district court to consider the petition. Id. § 2244(b)(3)(A).

5

To any extent a Rule 59(e) motion presents new claims supporting a petition

6

for a writ of habeas corpus, the motion should be construed as a second or

7

successive habeas petition under AEDPA. Rishor v. Ferguson, 822 F.3d 482, 492

8

(9th Cir. 2016). The district court should dismiss the new claims without prejudice

9

to allow the petitioner to move the court of appeals for permission to file the second

10
11

or successive habeas petition. Id.
Here, the Court cannot consider Mr. Landis’s new claims for habeas relief in

12

his Rule 59(e) motion. The Court is bound by the second or successive habeas

13

petition restrictions in AEDPA. 28 U.S.C. § 2244(b)(2)–(3). Thus, the Court

14

dismisses Mr. Landis’s claims that he was denied the right to present evidence, the

15

right to present witnesses, and the right to due process without prejudice.

16

Certificate of Appealability

17

A habeas petitioner may not appeal an adverse order unless a circuit judge or

18

district judge issues a certificate of appealability (“COA”). 28 U.S.C. § 2253. A

19

district court may only issue a COA “if the applicant has made a substantial

20

showing of the denial of a constitutional right.” Id.

21
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 9

1

Mr. Landis has failed to establish a substantial showing that he was denied a

2

constitutional right. Therefore, the Court finds no basis to issue a certificate of

3

appealability.

4

Accordingly, IT IS HEREBY ORDERED:

5

1.

Plaintiff’s Motion for Reconsideration, ECF No. 26, is DENIED.

6

2.

Plaintiff’s claims that he was denied the right to present evidence, the

7

right to present witnesses, and the right to due process are DISMISSED

8

WITHOUT PREJUDICE as a second or successive habeas claim. 28 U.S.C.

9

§ 2244(b)(2).

10

3.

11

appeal from this decision could not be taken in good faith, and there is no

12

basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c);

13

Fed. R. App. P. 22(b).

14

IT IS SO ORDERED. The District Court Clerk is directed to enter this

15
16

The Court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an

Order and provide copies to counsel.
DATED October 19, 2018.

17
18

s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

19
20
21
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ~ 10