Trainor v. Uttecht

Filing 26

ORDER DENYING RECONSIDERATION. Petitioners Motion for Reconsideration ECF No. 22 is DENIED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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ROBERT RUSSEL TRAINOR,
NO: 4:15-CV-5085-TOR
Petitioner,

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ORDER DENYING
RECONSIDERATION

v.
JEFFREY A. UTTECHT,
Respondent.

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BEFORE THE COURT is Petitioner’s Motion for Reconsideration (ECF

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No. 22). This matter was submitted for consideration without oral argument. The

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Court—having reviewed the briefing, the record, and files therein—is fully

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informed.

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BACKGROUND
In early September 2015, Mr. Trainor filed a petition for habeas corpus and,

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recognizing that the statutory deadline had passed by eight months, also filed a

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motion for equitable tolling. ECF Nos. 1; 3. Mr. Trainor’s motion for equitable

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tolling was supported by a sole declaration from his attorney, Mr. Lockwood,

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explaining the untimely filing. ECF No. 4.

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This Court held a hearing on Mr. Trainor’s motion on November 30, 2015.

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ECF No. 12. At the hearing, the Court noted that, based on the evidence presented,

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it would not find that equitable tolling was warranted. As to the first prong of the

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equitable tolling test, this Court noted that Mr. Lockwood’s conduct in failing to

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timely file a petition does not constitute an extraordinary circumstance but is more

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appropriately characterized as mere negligence. As to the second prong of the

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equitable tolling test, the Court noted that there was no evidence to support a

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finding of due diligence on the part of the Petitioner. Specifically, the Court

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highlighted that Mr. Trainor had not filed any affidavit attesting to his diligence.

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After explaining the deficiencies, the Court granted counsel leave to file

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supplemental material in support of his motion.

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On December 14, 2015, Mr. Trainor submitted one declaration from Ms.

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Gina Tennen of the LibertyBell Law Group in support of his motion for equitable

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tolling. ECF No. 14. In an effort to demonstrate Mr. Trainor’s diligence, Ms.

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Tennen testified to Mr. Trainor’s conversations with a paralegal in Ms. Tennen’s

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firm and submitted a list of phone calls purportedly made by Mr. Trainor to the

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firm. ECF No. 14-1.

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On December 18, 2015, the Court denied Petitioner’s motion for equitable

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tolling, concluding that Mr. Trainor’s attorneys’ conduct was not sufficiently

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egregious as to constitute an extraordinary circumstance and that Mr. Trainor had

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not demonstrated reasonable diligence. ECF No. 16.

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In the instant motion, Petitioner moves this Court to reconsider its ruling

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based on a newly-submitted declaration of Mr. Trainor. ECF No. 22. Respondent

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opposes Petitioner’s motion, asserting that Mr. Trainor has still failed to show he is

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entitled to equitable tolling namely because he has not shown some extraordinary

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circumstance prevented him from timely filing his petition. ECF No. 24

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DISCUSSION
A motion for reconsideration may be reviewed under either Federal Rule of

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Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief

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from judgment). Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.

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1993). “A district court may properly reconsider its decision if it ‘(1) is presented

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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.’”

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Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting School

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Dist. No. 1J, 5 F.3d at 1263). “There may also be other, highly unusual,

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circumstances warranting reconsideration.” School Dist. No. 1J, 5 F.3d at 1263.

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These standards apply in habeas corpus proceedings under 28 U.S.C. § 2254 to the

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extent they are not inconsistent with applicable federal statutory provisions and

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rules. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005).

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As a threshold issue, Mr. Trainor has failed to explain why the Court should

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consider his declaration, submitted for the first time in support of his motion for

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reconsideration. While the Court may reconsider its final judgment upon the

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introduction of newly discovered evidence, the party must demonstrate that this

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evidence, with reasonable diligence, could not have been timely discovered. Fed.

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R. Civ. P. 60(b)(2); See School Dist. No. IJ, 5 F.3d at 1263 (“The overwhelming

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weight of authority is that the failure to file documents in an original motion or

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opposition does not turn the late filed documents into ‘newly discovered

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evidence.’”).

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Mr. Trainor offers no explanation as to why he was unable to submit his

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affidavit at an earlier time. Mr. Trainor filed his motion for equitable tolling on

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September 2, 2015. ECF No. 3. Almost three months later, on November 30, 2015,

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this Court held a hearing on Petitioner’s motion. See ECF No. 12. The Court

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explained the deficiencies in Mr. Trainor’s motion, which deficiencies were also

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raised by Respondent in his response briefing, and specifically highlighted the fact

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that Mr. Trainor had not filed any affidavit attesting to his diligence in support of

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his motion. This Court allowed Petitioner two weeks to file supplemental

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documents in support of his motion. ECF No. 13. On December 14, 2015, Mr.

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Trainor filed the affidavit of Ms. Tennen alone. ECF No. 14. After the Court

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entered an order denying Petitioner’s motion, again explaining why the evidence

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was insufficient to warrant equitable tolling, Mr. Trainor moved for

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reconsideration and filed his own affidavit in support. While this Court recognizes

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the unavoidable constraints custody may present, Mr. Trainor has not explained

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why the time afforded was insufficient to allow him to present all available

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evidence in support of his motion for equitable tolling.

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Even assuming this Court should consider Mr. Trainor’s newly-submitted
declaration as evidence of Mr. Trainor’s diligence, this Court finds reconsideration

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is not warranted because Petitioner has failed to demonstrate that some

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extraordinary circumstance beyond his control made it impossible to file a timely

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petition.

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As this Court noted in its previous order, the conduct of Mr. Trainor’s

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attorneys in failing to timely file a habeas petition is more appropriately

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characterized as run-of-the-mill negligence. Based on the previously-submitted

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evidence, this Court found that (1) Mr. Lockwood failed to adequately check his

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email or follow up with the associate attorney at LibertyBell and was at least

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temporarily oblivious to the limitations deadline, (2) the LibertyBell associate

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never verified that Mr. Lockwood received the email with the draft petition or

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confirmed that the petition had been filed, and (3) this obliviousness on the part of

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both firms continued for [about eight] months. ECF No. 16 at 8-9.

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Mr. Trainor’s filings in support of the instant motion for reconsideration do

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nothing to alter this finding. Indeed, his reply briefing merely asserts that Mr.

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Lockwood’s conduct in failing to properly check his email and timely file the

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petition for habeas relief constitutes an extraordinary circumstance justifying

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equitable tolling. And although Mr. Trainor’s declaration asserts that he believed

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his case was proceeding and was advised by LibertyBell that this Court had not yet

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rendered a decision, the evidence falls short of warranting a finding of egregious

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professional misconduct. See Luna v. Kernan, 784 F.3d 640, 646-47 (9th Cir.

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2015) (holding that attorney’s conduct constituted egregious professional

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misconduct where the attorney dismissed the petitioner’s timely pro se petition,

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failed to file another petition within the 1-year deadline, and led the petition to

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believe for another six-plus years that litigation was moving forward).

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Accordingly, this Court declines to reconsider its previous order and find that Mr.

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Trainor is entitled to such a rare equitable remedy, unavailable in most cases.

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ACCORDINGLY, IT IS ORDERED:

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Petitioner’s Motion for Reconsideration (ECF No. 22) is DENIED.

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The District Court Executive is directed to enter this Order and provide

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copies to counsel. The file shall remain closed.
DATED February 18, 2016.

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THOMAS O. RICE
Chief United States District Judge

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