Mitchell v. United States of America, No. 3:2009cv08089 - Document 66 (D. Ariz. 2010)
Court Description: ORDER denying 58 Motion to Alter or Amend the Judgment. Signed by Judge Mary H Murguia on 12/21/10.(KSP)
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Mitchell v. United States of America 1 Doc. 66 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Lezmond Mitchell, 9 Petitioner, 10 vs. 11 12 13 14 United States of America, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-8089-PCT-MHM DEATH PENALTY CASE ORDER 15 On September 30, 2010, the Court denied Petitioner’s amended motion to vacate his 16 conviction and sentence under 28 U.S.C. § 2255, granted a certificate of appealability on 17 several claims, and entered judgment. (Doc. 56.) Subsequently, Petitioner filed a timely 18 motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil 19 Procedure. (Doc. 58.) Respondent opposed the motion, and Petitioner filed a reply. (Docs. 20 61, 65.) For the reasons that follow, the motion is denied. 21 DISCUSSION 22 A motion to alter or amend judgment under Rule 59(e) of the Federal Rules of Civil 23 Procedure is in essence a motion for reconsideration. Such a motion offers an “extraordinary 24 remedy, to be used sparingly in the interests of finality and conservation of judicial 25 resources.” Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). The 26 Ninth Circuit has consistently held that a motion brought pursuant to Rule 59(e) should only 27 be granted in “highly unusual circumstances.” Id.; see 389 Orange Street Partners v. Arnold, 28 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration is appropriate only if (1) the court is Dockets.Justia.com 1 presented with newly discovered evidence, (2) there is an intervening change in controlling 2 law, or (3) the court committed clear error. McDowell v. Calderon, 197 F.3d 1253, 1255 (9th 3 Cir. 1999) (per curiam); see School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 4 5 F.3d 1255, 1263 (9th Cir. 1993). A motion for reconsideration is not a forum for the 5 moving party to make new arguments not raised in its original briefs, Northwest Acceptance 6 Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988), or to ask the court to 7 “rethink what it has already thought through,” United States v. Rezzonico, 32 F. Supp.2d 8 1112, 1116 (D. Ariz. 1998) (quotation omitted). 9 Petitioner first asserts that the Court committed clear error in failing to hold an 10 evidentiary hearing and in utilizing an “irregular procedure” to resolve his amended § 2255 11 motion. (Doc. 58 at 3.) He also presents new evidence and argues that the Court erred in 12 failing to hold an evidentiary hearing on the majority of his claims. Finally, he asserts that 13 the Court erred in finding Claims Q and R to be procedurally precluded on the ground that 14 each was raised on direct appeal. 15 Briefing Procedures 16 Petitioner first contends that the Court’s “irregular procedure violated Congressional 17 intent, § 2555, and applicable case law, and resulted in an unfair proceeding.” (Doc. 58 at 18 6-7.) In his view, the Rules Governing Section 2255 Proceedings require a district court to 19 provide “bipartite fact development, then determine whether a hearing is warranted.” (Id. 20 at 7.) He further asserts that the Court denied his request for an evidentiary hearing “without 21 the benefit of briefing,” that his “investigation into developing his right to a hearing and 22 relief was on-going,” and that he would have moved for discovery had the Court “followed 23 the established procedure for adjudicating § 2255 motions.” (Id. at 3, 5 n.5, 6.) 24 Petitioner has failed to establish clear error. The Court appointed counsel in this 25 matter on April 25, 2008. On May 22, 2009, Petitioner filed a motion for discovery to 26 interview the trial jurors, which the Court denied. On June 8, 2009, Petitioner filed his 27 § 2255 motion to vacate, appended to which were numerous exhibits in support of his claims. 28 Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court directed -2- 1 the Government to file a response and issued a scheduling order. In November 2009, 2 Petitioner filed an amended motion to vacate along with additional supporting exhibits. One 3 month later, the Court granted the Government’s request for an order declaring Petitioner’s 4 attorney-client privilege waived as to his claims of trial counsel ineffectiveness and found 5 good cause for depositions of Petitioner’s trial counsel under Rule 6 of the Rules Governing 6 Section 2254 Proceedings in the event any of his trial attorneys would not submit to an 7 informal interview. The Government filed its response to Petitioner’s § 2255 motion in April 8 2010, along with transcripts of trial counsel’s depositions. Petitioner filed a reply three 9 months later. At that point, the petition was fully briefed, and nothing precluded the Court 10 from considering the claims, the proffered exhibits, and the trial record to determine whether 11 an evidentiary hearing was either required or warranted, pursuant to Rule 8 of the Rules 12 Governing Section 2254 Proceedings. 13 Petitioner has cited no statute, rule, or caselaw that requires a district court to order 14 separate briefing on the necessity for discovery or an evidentiary hearing. Petitioner 15 correctly notes that Rule 6 permits discovery for good cause; however, it is incumbent on the 16 parties to request it. In this case, Petitioner did not file any motions for discovery other than 17 to interview the trial jurors. His amended § 2255 motion asked that Petitioner be permitted 18 to “pursue such discovery as may be necessary to fully develop the facts” (Doc. 30 at 279); 19 however, this general request failed to comply with the requirements of Rule 6.1 See Rules 20 Governing § 2255 Proceedings, Rule 6(b), 28 U.S.C. foll. § 2255 (“A party requesting 21 discovery must provide reasons for the request. The request must also include any proposed 22 interrogatories and requests for admission, and must specify any requested documents.”). 23 Moreover, nothing precluded Petitioner from filing a motion for discovery in conjunction 24 25 26 27 28 The only arguably specific request for discovery contained in the § 2255 motion related to Claim C, counsel’s alleged conflict of interest. Petitioner requested that the Court compel the Office of the Federal Public Defender to disclose the basis of a conflict that prompted one of its attorneys to be relieved as counsel for an unnamed client, who had some connection to this case. (Doc. 30 at 113.) The Court addressed this request in its September 30, 2010 order and declines to reconsider it. (See Doc. 56 at 54-55.) 1 -3- 1 with his § 2255 motion or seeking leave of the Court for separate briefing on the necessity 2 for discovery and an evidentiary hearing. There was no clear error in the Court’s procedures. 3 Evidentiary Hearing 4 Petitioner asserts that his proffered evidence contradicted trial counsel’s deposition 5 testimony and thus an evidentiary hearing was necessary to conduct a thorough evaluation 6 of counsel’s performance and resolve factual disputes. Petitioner further faults the Court for 7 “ignoring” his proffered evidence and crediting counsel’s deposition testimony, asserting that 8 a live hearing was necessary to “develop fully the circumstances of counsel’s decision 9 making.” (Doc. 58 at 10 n.7.) In evaluating Petitioner’s claims, the Court considered trial 10 counsel’s deposition testimony, as well as Petitioner’s proffered evidence, and determined 11 that Petitioner’s allegations, if true, would not entitle him to relief. In doing so, it found there 12 were no material factual disputes that required a hearing to resolve. The instant motion 13 challenges these conclusions but does not establish clear error; rather, it asks the Court to 14 “rethink what it has already thought through.” Rezzonico, 32 F. Supp.2d at 1116. The Court 15 declines to reconsider its determination that an evidentiary hearing was neither warranted nor 16 required for any of Petitioner’s claims. 17 Claim Q 18 In Claim Q Petitioner alleged a Brady violation based on the Government’s failure to 19 disclose a letter from the Attorney General of the Navajo Nation indicating the Nation’s 20 opposition to capital punishment. Because this claim was raised and rejected on direct appeal 21 as harmless, the Court declined to consider it. The instant motion asserts this was clear error 22 because Petitioner requires extra-record factual development to establish prejudice. 23 “Issues raised at trial and considered on direct appeal are not subject to collateral 24 attack under 28 U.S.C. § 2255.” Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975). 25 In Sanders v. United States, 373 U.S. 1, 15 (1963), the Court determined that the rules 26 governing motions under § 2255 should be the same as the rules governing successive 27 collateral attacks and such motions should be denied if: (1) the same ground presented in the 28 subsequent application was determined adversely to the applicant on the prior application, -4- 1 (2) the prior determination was on the merits, and (3) the ends of justice would not be served 2 by reaching the merits of the subsequent application. 3 Petitioner’s claim on the merits, and Petitioner did not assert in his § 2255 motion that a 4 manifest injustice would occur if the claim was not addressed on the merits. Petitioner has 5 not established that the Court clearly erred in declining to reach the merits of Claim Q. See 6 Olney v. United States, 433 F.2d 161, 162 (9th Cir. 1970) (“Having raised this point 7 unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition 8 under § 2255.”) 9 Claim R The appellate court rejected 10 In Claim R Petitioner alleged that federal investigators colluded with Navajo Nation 11 law enforcement to violate his Fifth and Sixth Amendment rights and thus his statements to 12 law enforcement were involuntary. Similar to Claim Q, the Court declined to reach the 13 merits of this claim because it had been raised and rejected on direct appeal. Petitioner 14 argues that the facts necessary to prove the claim were not available to appellate counsel and 15 thus the Court erred in not reaching its merits. 16 In support of his Rule 59 motion, Petitioner has submitted a declaration from Kathleen 17 Bowman, the Public Defender of the Navajo Nation. (Doc. 60-1.) According to Bowman, 18 Petitioner’s extended detention in tribal custody was in violation of tribal law; Petitioner 19 would have been entitled to a Navajo Nation public defender had the Nation not dropped its 20 armed robbery offense against him; there is no distinction between federal and tribal law for 21 armed robbery, rendering suspect the federal agents’ testimony that Petitioner was arrested 22 on tribal charges because they lacked sufficient evidence to arrest him on federal charges; 23 and collaborative efforts between federal and tribal authorities usually result in misuse of 24 Navajo Nation investigators by the United States. (Id. at 6-13.) 25 Setting aside the issue of delay in presenting this new evidence, nothing in Bowman’s 26 declaration supports a showing of “‘actual collaboration’ intended to deprive [Petitioner] of 27 federal procedural rights.” United States v. Mitchell, 502 F.3d 931, 961 (2007). The Ninth 28 Circuit rejected Petitioner’s collusion claim on the merits, and Petitioner did not establish -5- 1 that a manifest injustice would occur if the claim were not reconsidered in post-conviction 2 proceedings. The Court did not clearly err in finding Claim R procedurally precluded from 3 review on the merits. See Olney, 433 F.2d at 162. 4 Based on the foregoing, 5 IT IS HEREBY ORDERED that Petitioner’s Motion to Alter or Amend the 6 7 Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 58) is DENIED. DATED this 21st day of December, 2010. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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