United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
The government has filed a motion for reconsideration (Doc. 95) of the Court's order granting Petitioner Kenderick Begay's motion to vacate brought pursuant to 28 U.S.C. § 2255 (Doc. 91). The Court will deny the motion.
I. Legal Standard.
Motions for reconsideration are disfavored and should be granted only in rare circumstances. Collins v. D.R. Horton, Inc., 252 F.Supp.2d 936, 938 (D. Ariz. 2003). A motion for reconsideration will be denied "absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to [the Court's] attention earlier with reasonable diligence." LR Civ 7.2(g)(1); see Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Mere disagreement with an order is an insufficient basis for reconsideration. See Ross v. Arpaio, No. CV-05-4177-PHX-MHM, 2008 WL 1776502, at *2 (D. Ariz. 2008). Nor should reconsideration be used to ask the Court to rethink its analysis. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998); see N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988).
The government argues the Court should grant its motion for three reasons: (1) the Court committed manifest error in concluding that Begay's trial counsel had an obligation to interview Dorasita Begay and Alfred Bennie Lee, Jr., (2) the Court committed manifest error by concluding that Lee's confession would have been admissible, and (3) the Court erred in finding that trial counsel was ineffective for failing to introduce the pawn shop records.
A. Trial Counsel's Performance.
The government first argues that the Court should not have concluded that trial counsel had an obligation to interview Dorasita and Lee because both witnesses had already been interviewed and trial counsel "had familiarized himself with the content of those interviews." Doc. 95 at 4. In support of its position, the government relies on four Ninth Circuit cases, none of which were cited in its objections to the R&R. Doc. 84. Regardless, the Court finds the government's argument meritless.
In Bragg v. Galaza, 242 F.3d 1082, 1086 (9th Cir. 2001), the defendant was convicted of second degree murder of a woman who was shot in her car in what appeared to be a drive-by shooting. Witnesses at trial testified that the defendant had been driving with another passenger, Norwood, who was represented by the defendant's counsel in an unrelated case. Id. at 1085. Norwood told counsel's investigator that he knew "all about" the defendant's case, but the investigator did not further question him, and counsel eventually withdrew from representing Norwood in the unrelated case. Id. at 1086. In finding that counsel had no duty to further question his investigator regarding Norwood's statement, the court noted that the defendant failed to "identify any information that [counsel] had not already gained from other witnesses that he would have gained from interviewing Norwood" and that "[t]here [was] no evidence that investigating Norwood would be akin to investigating the most important defense.'" Id. at 1088. The court also noted that the case against the defendant was "strong, " given that "the passenger in the victim's car identified [the defendant] as the driver; other witnesses identified [the defendant's] car, [the defendant] or both[.]" Id. Moreover, the record was not fully developed, as the court was without evidence of counsel's investigation and the reasons he chose not to investigate. Id.
In LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998), the defendant argued that his counsel was ineffective for "failing to interview and examine all of the witnesses at trial." Id. at 1274. The Ninth Circuit disagreed, finding that "[p]rior to the time that trial counsel was appointed to represent [the defendant], all of the eighteen witnesses had been interviewed[, ] [t]rial counsel [had] reviewed the transcripts of these interviews[, ]" trial counsel had reviewed the investigator's reports, and trial counsel had personally interviewed the only eyewitness in the case. Id. The court further noted that "[t]rial counsel put in the equivalent of twenty-seven eight-hour days in trial preparation" and "that trial counsel did not personally interview each witness does not constitute ineffective assistance." Id.
In Eggleston v. United States, 798 F.2d 374 (9th Cir. 1986), a defendant who pled guilty to fraud argued that counsel "failed to interview governmental witnesses, to obtain discovery materials and information from the government, and to subpoena defense witnesses." Id. at 376. The court rejected the claim, finding that "[t]he record clearly shows [counsel] was well informed of the facts and circumstances of the case by his discovery methods." Id. Counsel had the "defendant as a source of information, ... complete access to all of the witness interviews and statements taken by the government, as well as supporting documents and FBI reports." Id. The court also noted that the defendant failed to identify what additional information would have been gained from further investigation. Id. The court found that counsel's advice that the defendant plead guilty was reasonable trial strategy considering the strength of the government's case. Id.
In United States v. Naghani, 252 F.Appx. 185 (9th Cir. 2007) (unpublished), a defendant convicted of interfering with flight crew members argued that his counsel rendered ineffective assistance for failing to interview a flight attendant "to whom [the defendant] made a threatening remark that served as the basis for his conviction." Id. at 187. The court rejected the claim, finding that counsel "reviewed the written statements of [the flight attendant] as well as the investigator reports of interviews with [the flight attendant], " and that the defendant failed to "allege that an interview... would have revealed any new material facts." Id.
These cases are distinguishable. None dealt with counsel's failure to investigate the defendant's "most important defense, " a key distinction recognized by the court in Bragg. See 242 F.3d at 1088 (quoting Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994)). Here, trial counsel conducted almost no investigation into Lee's alleged confession even though he recognized that "the heart of our case" was demonstrating Lee was in fact responsible for the murders. He did not recall speaking with the previously-hired investigator, Reuben Martinez, who interviewed Dorasita, or even attempting to obtain the investigator's reports. Doc. 91 at 11. Even though the court appointed another investigator to assist trial counsel, neither the new investigator nor trial counsel interviewed any witnesses, let alone the witness most important to Begay's defense: the man who allegedly confessed to the very crime with which Begay was charged. Id. at 11. Instead, trial counsel's strategy was to simply try to "grab folks" outside of the courtroom at another trial. Id. 
Unlike the cases cited by the government, this is not a situation where the witness accounts were "otherwise fairly known to defense counsel." Eggleston, 798 F.2d at 376. In Eggleston, counsel "was well informed of the facts and circumstances of the case by his discovery methods." Id. Here, however, the record is devoid of evidence that trial counsel took any steps to investigate Lee's confession. Doc. 71-1 at 20, 52. Counsel in LaGrand at least reviewed both the interview transcripts and investigator reports of the eighteen witnesses, and counsel in Naghani reviewed both the statement report and the investigator report of the witness. This is not a case where counsel simply failed to re-interview a witness or dig a little deeper. Trial counsel deemed it unnecessary to interview any potential witnesses or to even phone investigator Martinez in an attempt to obtain the ...