(DP) Bolin v. Warden of San Quentin State Prison, No. 1:1999cv05279 - Document 356 (E.D. Cal. 2016)
Court Description: ORDER Denying Petitioner's Rule 59(e) Motion signed by Chief Judge Lawrence J. O'Neill on 08/30/2016. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. BOLIN, 12 13 14 15 Case No. 1:99-cv-05279-LJO-SAB Petitioner, DEATH PENALTY CASE ORDER DENYING PETITIONER’S RULE 59(e) MOTION v. RON DAVIS, Warden of San Quentin State Prison, (Doc. No. 352) Respondent. 16 (CASE TO REMAIN CLOSED) 17 Before the court is petitioner’s motion pursuant to Rule 59(e) of the Federal Rules of Civil 18 Procedure to alter or amend the June 9, 2016 judgment entered upon memorandum and order 19 (hereinafter “Order”) by granting or conducting further proceedings on claim C2 and by 20 expanding the partial Certificate of Appealability (“COA”) to include claims I1-I12, I14-I17, W1 21 and W3-W9. 22 Respondent filed an opposition to the motion. Petitioner replied to the opposition. 23 The court previously vacated an August 9, 2016 hearing on the motion. (See Doc. No. 24 353.) Based on the facts of this case and controlling law, the motion is amenable to decision 25 without a hearing. 26 I. BACKGROUND 27 The court set forth the factual and procedural history of this case in its June 9, 2016 Order 28 and will not repeat it here in full, but will provide a summary where relevant to the motion before 1 1 the court. 2 The underlying petition raised 31 claims including subclaims asserting trial court error, 3 insufficient evidence, prosecutorial misconduct, denial of counsel, and ineffective assistance of 4 counsel based on allegations that petitioner did not commit multiple first degree murder in the 5 killings of Vance Huffstuttler and Steve Mincy and that the jury was exposed to excessive and 6 prejudicial pretrial publicity. 7 On June 9, 2016, the court entered judgment on the Order: dismissing without prejudice 8 unexhausted allegations, denying claim C2 following limited evidentiary hearing, denying further 9 record expansion and evidentiary hearing, denying record based claims A, B, and D through FF, 10 denying the amended petition for writ of habeas corpus, and issuing a COA for claims C2, I13, L 11 (L1-L4) & W2. (See Doc. Nos. 350 & 351.) 12 II. LEGAL STANDARD 13 Rule 59(e) of the Federal Rules of Civil Procedure allows a district court to alter, amend, 14 or vacate a prior judgment. Under Rule 59(e), a motion for reconsideration should not be granted, 15 absent highly unusual circumstances, unless the district court is presented with newly discovered 16 evidence, committed clear error, or if there is an intervening change in the controlling law. See 17 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); Allstate Ins. Co. v. 18 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). 19 The purpose of Rule 59(e) is “to allow the district court to correct its own errors, sparing 20 the parties and appellate courts the burden of unnecessary appellate proceedings.” Howard v. 21 United States, 533 F.3d 472, 475 (6th Cir. 2008) (quoting York v. Tate, 858 F.2d 322, 326 (6th 22 Cir. 1988)). To this end: 23 24 25 26 27 28 Rule 59(e) does not list specific grounds for a motion to amend or alter; hence, the district court enjoys considerable discretion in granting or denying the motion. [Citation] In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law. [Citation] Other, highly unusual circumstances, also may warrant reconsideration. [Citation] 2 1 At the same time, however, a motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. [Citation] Therefore, a party raising arguments or presenting evidence for the first time when they could reasonably have been raised earlier in the litigation ... raises the concern that it has abused Rule 59(e). [Citation] Ultimately, a party seeking reconsideration must show more than a disagreement with the court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden. [Citation] 2 3 4 5 6 As is abundantly clear, amending a judgment after its entry remains an extraordinary remedy. [Citation] The Ninth Circuit thus has repeatedly cautioned that such an amendment should be used sparingly. [Citation] Amendment of judgment is sparingly used to serve the dual interests of finality and conservation of judicial resources. [Citation] It stands to reason then that plaintiff, as the moving party here, has a high hurdle. [Citation] Moreover, denial of a motion for reconsideration under Rule 59(e) will not be reversed absent a showing of abuse of discretion. [Citation] 7 8 9 10 ... 11 Manifest error is, effectively, clear error, [Citation] such that a court should have a clear conviction of error. [Citation] Thus, mere doubts or disagreement about the wisdom of a prior decision of this or a lower court will not suffice. [Citation] To be clearly erroneous, a decision must strike a court as more than just maybe or probably wrong; it must be dead wrong. [Citation] 12 13 14 Within the Ninth Circuit, courts also have looked to Black's Law Dictionary, stating that a manifest error of fact or law must be one that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record. 15 16 17 18 Teamsters Local 617 Pension & Welfare Funds v. Apollo Grp., Inc., 282 F.R.D. 216, 220-21, 231 19 (D. Ariz. 2012); see also Local Rule 230(j). III. DISCUSSION 20 21 A. Jurisdiction 22 The Federal Rules of Civil Procedure apply in habeas corpus proceedings only “to the 23 extent that they are not inconsistent with any statutory provisions or [the Rules Governing Section 24 2254 Cases].” Rule 12, Rules Governing § 2254 Cases; see also Fed. R. Civ. P 81(a)(4). 25 The Supreme Court has not addressed whether or how Rule 59(e) is to be applied in 26 federal habeas corpus cases subject to the Anti-terrorism and Effective Death Penalty Act 27 (“AEDPA”). See Row v. Beauclair, No. 1:98-CV-00240-BLW, 2015 WL 1481416, at *5 (D. 28 Idaho Mar. 31, 2015). 3 1 In the Ninth Circuit, a timely Rule 59(e) motion that asks the district court to correct 2 manifest errors of law or fact upon which the judgment rests should not be construed as a second 3 or successive habeas petition. Rishor v. Ferguson, 822 F.3d 482, 492 (9th Cir. 2016). 4 The instant motion does not appear to raise an argument or ground for relief that was not 5 raised in the initial habeas petition. However, the court need not decide whether the motion 6 constitutes a second or successive habeas corpus application under 28 U.S.C. § 2244 because the 7 motion fails on the merits. See Liggins v. Brazelton, No. 2:09-CV-01777 GEB EFR 2013 WL 8 950352, at *1 (E.D. Cal. Mar. 11, 2013) (whether and/or when a Rule 59(e) motion for 9 reconsideration may constitute a second or successive habeas corpus application under 28 U.S.C. 10 § 2244 need not be decided since petitioner has not made an adequate showing on the merits of 11 his request for reconsideration). 12 B. Analysis 13 1. 14 Petitioner asks the court to reconsider its denial of claim C2 which alleges defense counsel 15 was ineffective by failing to renew his change of venue motion following voir dire of the jury and 16 in spite of alleged inflammatory pretrial publicity and alleged lack of impartiality among the 17 prospective jurors. (See Doc. No. 352 at 2:5-3:15; Doc. No. 113 at ¶¶ 85-151; Doc. No. 178 at 18 75-95.)1 19 Reconsideration of Claim C2 a. Clearly Established Law 20 The Sixth Amendment right to effective assistance of counsel, applicable to the states 21 through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing 22 phase of a trial. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 1; Gideon v. Wainwright, 372 23 U.S. 335, 343-45 (1963); Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). 24 Strickland v. Washington provides the clearly established law governing ineffective 25 1 26 27 28 Unless otherwise indicated, throughout this order, “CT” refers to the Clerk’s Transcript on Appeal, “RT” refers to the Reporter’s Transcript on Appeal, “EH” refers to evidentiary hearing held May 14, 2013, “EH Ex” refers to joint final exhibit at the evidentiary hearing, “Supp. RT” refers to the Supplemental Reporter’s Transcript on Appeal, “CSC” refers to the California Supreme Court, and “SHCP” refers to state habeas corpus petition. Other transcripts are referenced by date. Reference to page numbering is to ECF system numbering except Bates numbering is used for the CT. Any reference to state law is to California law unless otherwise noted. 4 1 assistance of counsel claims. 466 U.S. 668 (1984); see also Gentry v. Sinclair, 705 F.3d 884, 899 2 (9th Cir. 2013) (evaluating an ineffective assistance claim under AEDPA using Strickland’s two- 3 pronged test). In Strickland, the Supreme Court made clear “[t]he benchmark for judging any 4 claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning 5 of the adversarial process that the trial cannot be relied on as having produced a just result.” 466 6 U.S. at 686. The Court then established a two pronged test for meeting that standard: an 7 individual must show “counsel’s performance was deficient” and “the deficient performance 8 prejudiced the defense.” Id. at 687. “Surmounting Strickland’s high bar is never an easy task.” 9 Padilla v. Kentucky, 559 U.S. 356, 371 (2010). 10 b. Analysis 11 Petitioner does not set forth any basis that warrants reconsideration. As a preliminary 12 matter, petitioner may not support his request for reconsideration by incorporating previously 13 denied claims as to which reconsideration is not sought. (See Doc. No. 352 at 2, n.1.) Claims 14 previously denied for which reconsideration is not sought cannot alone serve as a basis for Rule 15 59 relief. Teamsters, 282 F.R.D. at 231-32. 16 Petitioner does not argue newly discovered evidence or intervening change in controlling 17 law. Nor has he demonstrated that the court committed clear error of law or fact, or manifest 18 injustice. Rather, petitioner reiterates the same arguments and re-litigates the same issues the 19 court already considered in denying the claim. Petitioner’s arguments in support of 20 reconsideration of claim C2 are discussed separately below. 21 22 (i) Unwilling, Disloyal, Incompetent Counsel Petitioner argues the court erred by “failing to address [his] allegation that trial counsel 23 Charles Soria’s unwillingness to represent [petitioner] adversely affected every aspect of the 24 trial.” (Doc. No. 352 at 2:13-15, citing Am. Pet., Doc. No. 113 at ¶ 62.) He argues the court 25 focused upon “Mr. Soria’s almost ten years’ experience as a criminal defense attorney at the time, 26 his experience as a counsel in fifteen prior murder cases and three prior capital cases,” (Doc. No. 27 352 at 2:15-17), and ignored that Mr. Soria was an unwilling, incompetent and disloyal attorney 28 who attempted to withdraw several months before trial (see Am. Pet., Doc. No. 113 at ¶¶ 49-64). 5 1 This argument does not state any basis for reconsideration. Petitioner simply reiterates the 2 same arguments and re-litigates the same issues the court already considered in denying claim C2 3 following limited evidentiary hearing. (See Doc. No. 350 at 21-43, 45-47.) This is improper. 4 “Reconsideration should not be used merely to ask the court to rethink what it has already 5 thought.” Clarke v. Upton, No. 1:07-CV-0888 AWI-SMS, 2012 WL 6691914, at *1 (E.D. Cal. 6 Dec. 21, 2012); see also Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1236 (E.D. 7 Cal. 2011) (“[R]ecapitulation of the cases and arguments considered by the court before rendering 8 its original decision fails to carry the moving party's burden.”). 9 (ii) Meritorious Venue Change Motion 10 Petitioner argues the court erred in finding that trial counsel “could reasonably have 11 believed that a renewed venue change motion would have been denied given the facts of his 12 case.” (Doc. No. 352 at 3:12-13.) He argues the court failed to account for trial counsel’s 13 deficient investigation of facts underlying the change of venue motion. He argues that Mr. 14 Soria’s ambivalence toward petitioner led to inadequate development and presentation of 15 unspecified media coverage evidence that could have supported the venue change motion. He 16 argues that as a result defense counsel “improperly and prematurely conceded that change of 17 venue wouldn’t be appropriate but for the America’s Most Wanted program.” (Doc. No. 352 at 18 3:7-11.) 19 However, petitioner re-argues and re-litigates the same issues the court already considered 20 in denying claim C2 following limited evidentiary hearing. (See Doc. No. 350 at 21-43, 45-47.) 21 This is not a basis for reconsideration. Clarke, 2012 WL 6691914, at *1. 22 (iii) Jury Selection Strategy 23 Petitioner argues the court “mistakenly credited” defense counsel Soria’s testimony that 24 the defense was more concerned with avoiding “pro-death penalty” jurors than avoiding jurors 25 who had been exposed to the America’s Most Wanted television program. (Doc. No. 355 at 2:3- 26 10.) In support of this argument, he states that the trial record shows defense counsel repeatedly 27 made “for cause” challenges of prospective jurors who had favorable death penalty views and 28 who had watched the program. (Id.) 6 1 2 Here again, petitioner merely re-argues and re-litigates issues the court already considered in denying claim C2 following limited evidentiary hearing. (See Doc. No. 350 at 31-36.) 3 2. 4 Petitioner asks the court to reconsider its denial of a COA for claims I1-I12, I14-I17 5 (alleging ineffective assistance at the guilt phase) and for claims W1 and W3-W9 (alleging 6 ineffective assistance at the penalty phase). (See Doc. No. 113 at ¶¶ 236-89, 299-319, 708-13, 7 718-88.) 8 Reconsideration of Certificate of Appealability for Claims I and W a. Clearly Established Law 9 Unless a circuit justice or judge issues a COA, an appeal may not be taken to the Court of 10 Appeals from the final order in a habeas proceeding in which the detention complained of arises 11 out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 12 322, 336 (2003). A district court must issue or deny a COA when it enters a final order adverse 13 to the applicant. See Rule 11(a), Rules Governing § 2254 Cases. 14 A COA may issue only if the applicant makes a substantial showing of the denial of a 15 constitutional right. 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that 16 reasonable jurists could debate whether the petition should have been resolved in a different 17 manner or that the issues presented were adequate to deserve encouragement to proceed further. 18 Miller–El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A COA 19 should issue if the petitioner shows that jurists of reason would find it debatable whether: (1) the 20 petition states a valid claim of the denial of a constitutional right, and (2) the district court was 21 correct in any procedural ruling. Slack, 529 U.S. at 483–84. 22 In determining these issues, a court conducts an overview of the claims in the habeas 23 petition, generally assesses their merits, and determines whether the resolution was debatable 24 among jurists of reason or wrong. Miller–El, 537 U.S. at 338. 25 b. Analysis 26 Petitioner does not set forth any newly discovered evidence or intervening change in 27 controlling law, or demonstrate that the court committed clear error of law or fact, or manifest 28 injustice. Instead petitioner largely re-argues and re-litigates the same issues the court already 7 1 considered in denying these claims and COA. As noted, this is not a basis for reconsideration. 2 Clarke, 2012 WL 6691914, at *1; Arteaga, 733 F. Supp. 2d at 1236. Petitioner’s arguments are 3 discussed separately below. 4 5 (i) COA regarding Guilt and Penalty Phase Ineffective Assistance Claims 6 Petitioner argues jurists of reason could debate whether the California Supreme Court in 7 denying these claims unreasonably determined facts in light of the evidence presented in the state 8 court proceeding. In support of this argument, he states the California Supreme Court’s opinion 9 on direct appeal, People v. Bolin, 18 Cal. 4th 297 (1998), as modified on denial of reh'g (Aug. 12, 10 1998), portions of which were quoted in the court’s June 9, 2016 Order, (see Doc. No. 352 at 11 5:12-16, 6:21-22), did not consider the evidentiary proffer that was before the California Supreme 12 Court on habeas review. 13 However, petitioner raised these same claims in his state petition for writ of habeas corpus 14 which was summarily denied on the merits by the California Supreme Court based on the record 15 then before that court. (See CSC Order Den. Pet. Habeas Corpus.) It remains that these claims, 16 fully adjudicated in state court, fail to pass through the § 2254(d) gateway for the reasons stated 17 by the court in its June 9, 2016 Order. (See Doc. No. 350 at 75-138, 247-84); see also Frye v. 18 Warden, San Quentin State Prison, No. 2:99-CV-0628 KJM CKD, 2015 WL 300755, at *41 19 (E.D. Cal. Jan. 22, 2015) (“[T]he question under § 2254(d) is not whether this court finds the 20 petitioner has established a prima facie case, but whether no reasonable jurist could have found 21 otherwise.”). 22 Petitioner has not demonstrated the court erred in determining that he has not made a 23 substantial showing of the denial of a constitutional right, i.e., that reasonable jurists could debate 24 denial of the claims and whether a COA should have issued for these claims. 25 (ii) COA regarding Guilt Phase Ineffective Assistance Claims 26 Petitioner argues the court erred in denying a COA for the guilt phase ineffective 27 assistance claims because jurists of reason could debate the significance of record facts relating to 28 witness impeachment (Eloy Ramirez), witness preparation (Dr. Markman) and the guilt phase 8 1 investigation (certain billing records of defense investigator Binns). (See Doc. No. 352 at 6:10- 2 8:5.) However, the court previously considered and rejected these same arguments when denying 3 these claims and a COA. 4 These claims, fully adjudicated in state court, fail to pass through the § 2254(d) gateway 5 for the reasons stated by the court in its June 9, 2016 Order. (See Doc. No. 350 at 75-138); see 6 also Frye, 2015 WL 300755, at *41. 7 determining that he has not made a substantial showing of the denial of a constitutional right, i.e., 8 that reasonable jurists could debate denial of these claims and a COA for them. 9 10 (iii) Petitioner has not demonstrated the court erred in COA regarding Penalty Phase Ineffective Assistance Claims Petitioner argues the court committed multiple errors in denying a COA for the penalty 11 phase ineffective assistance claims. (See Doc. No. 352 at 8:10-15:10.) First, he argues that claim 12 W2 (alleging defense counsel Cater was ineffective by seeking only a two week continuance to 13 complete his death penalty defense), for which a COA was issued, cannot be resolved on appeal 14 unless the merits of all the noted penalty phase ineffective assistance claims (alleging defense 15 counsel’s inadequate investigation of mitigating and aggravating evidence, inadequate witness 16 preparation and impeachment and failure to object to trial court error and prosecutorial 17 misconduct) are also decided on appeal. He argues on this basis that a COA should issue for all 18 the noted penalty phase ineffective assistance claims. 19 However, petitioner’s speculation that a continuance of longer than two weeks would not 20 have been necessary absent counsel’s alleged penalty phase deficiencies is not alone a basis for 21 the court to find its denial of these claims and a COA was debatable or wrong. See 28 § 22 2253(c)(2); Miller–El, 537 U.S. at 338. Moreover, as the court noted in its June 9, 2016 Order, a 23 petitioner seeking a COA “is not required to prove the merits of his case [.]” (See Doc. No. 350 24 at 303:18 citing Miller-El, 537 U.S. at 338.) The court is not persuaded that the sufficiency on 25 appeal of claim W2 is alone a basis to issue a COA for the noted separate claims. 26 Second, petitioner argues jurists of reason could disagree whether the state court’s denial 27 of these claims was reasonable given defense counsel’s reliance upon the guilt phase competency 28 evaluation of Dr. Markman as a basis to forego penalty phase mental defense investigation. He 9 1 revisits his arguments previously rejected by this court that defense counsel was deficient because 2 Dr. Markman reviewed only limited information and that defense counsel was on notice 3 petitioner may have been mentally impaired. It remains that these claims, fully adjudicated in 4 state court, fail to pass through the § 2254(d) gateway for the reasons stated by the court in its 5 June 9, 2016 Order. (See Doc. No. 350 at 249-84); see also Frye, 2015 WL 300755, at *41. 6 Finally, petitioner argues that the court erred in denying a COA for these penalty phase 7 claims because reasonable jurists could debate whether counsel’s allegedly deficient penalty 8 defense caused cumulative prejudice under Strickland. However, the court previously rejected 9 these allegations. (See Doc. No. 350 at 247-90.) These claims, fully adjudicated in state court, 10 fail to pass through the § 2254(d) gateway for the reasons stated by the court in its June 9, 2016 11 Order. (Id.); see also Frye, 2015 WL 300755, at *41. 12 For the reasons stated, petitioner has not demonstrated the court erred in determining that 13 he has not made a substantial showing of the denial of a constitutional right, i.e., that reasonable 14 jurists could debate denial of these claims and a COA for them. 15 C. Conclusions 16 Petitioner’s Rule 59(e) motion to alter or amend the June 9, 2016 judgment by granting or 17 conducting further proceedings on claim C2 shall be denied for the reasons discussed above and 18 in the June 9, 2016 Order. He does not argue newly discovered evidence or intervening change in 19 controlling law and he has not demonstrated that the court committed clear error of law or fact, or 20 manifest injustice in denying this claim following limited evidentiary hearing. See Teamsters, 21 282 F.R.D. at 220-21, 231. 22 Petitioner’s Rule 59(e) motion to alter or amend the June 9, 2016 judgment by expanding 23 the COA to include claims I1-I12, I14-I17, W1 and W3-W9 shall be denied for the reasons 24 discussed above and in the June 9, 2016 Order. See also Turner v. Calderon, 281 F.3d 851, 865 25 (9th Cir. 2002) (quoting Slack, 529 U.S. at 484) (“[W]here a district court has rejected 26 constitutional claims on the merits . . . the petitioner must demonstrate that reasonable jurists 27 would find the district court's assessment of the constitutional claims debatable or wrong.”). 28 Petitioner’s reconsideration motion does not suggest reasonable jurists would disagree 10 1 with the court’s resolution of these claims and COA or conclude these claims deserve 2 encouragement to proceed further with issuance of a COA. Cf., Miller-Ell, 537 U.S. at 327 (COA 3 issued upon substantial evidence of Batson v. Kentucky [476 U.S. 79 (1986)] violation). 4 IV. ORDER 5 Accordingly, it is hereby ORDERED that petitioner’s motion (Doc. No. 352) seeking Rule 6 59(e) reconsideration of this court’s June 9, 2016 judgment upon memorandum and order 7 dismissing without prejudice unexhausted allegations, denying claim C2 following limited 8 evidentiary hearing, denying further record expansion and evidentiary hearing, denying record 9 based claims A, B, and D through FF, denying the amended petition for writ of habeas corpus and 10 issuing a COA for claims C2, I13, L (L1-L4) & W2 (see Doc. Nos. 350 & 351) is DENIED. 11 12 13 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ August 30, 2016 UNITED STATES CHIEF DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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