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Apelt, v. Ryan

United States District Court, D. Arizona

December 1, 2015

Michael Apelt, Petitioner,
Charles L. Ryan, et al., Respondents.



Roslyn O. Silver Senior United States District Judge

In an order dated September 1, 2015, the Court denied all but one of Apelt’s remaining habeas claims. (Doc. 359.) With respect to Claim 12, alleging ineffective assistance of counsel at sentencing, the Court found the state court’s rejection of the claim was unreasonable under 28 U.S.C. § 2254(d)(1). (Id. at 55.) The Court directed the parties to file supplemental briefs addressing whether an evidentiary hearing was necessary to determine if Apelt is entitled to habeas relief on the claim. (Id. at 56.) On September 15, Respondents filed a motion asking the Court to reconsider its analysis of Claim 12. (Doc. 361.) On September 18, the parties filed their supplemental briefs, each stating that an evidentiary hearing was unnecessary. (Docs. 363, 364.)

As set forth below, the Court will deny the motion for reconsideration and grant relief on Claim 12.

1. Motion for Reconsideration is Denied

Respondents move for reconsideration pursuant to Rule 7.2(g) of the Local Rules of Civil Procedure. (Doc. 361 at 1.) Motions for reconsideration are disfavored and should be denied “absent a showing of manifest error or of new facts or legal authority.” L.R. Civ. P. 7.2(g). A motion for reconsideration may not repeat arguments made in support of or in opposition to the motion that resulted in the Order for which the party seeks reconsideration. Id.

The state PCR court denied Claim 12 on procedural grounds and, alternatively, on the merits. This Court reviewed the state court’s ruling under 28 U.S.C. § 2254(d) and found the state court’s denial of the claim was contrary to and an unreasonable application of Strickland v. Washington, 466 U.S. 688 (1984). (Doc. 359 at 20-27.)

Respondents contend the Court committed manifest error by applying Martinez v. Ryan, 132 S.Ct. 1309 (2012), to excuse the procedural default of Claim 12. (Doc. 361 at 4.) As Apelt notes, however, the Court did not apply Martinez to excuse the default but instead reviewed the state court’s alternative merits ruling. (Doc. 359 at 17.) The Court noted Martinez, but only in the context of reassessing its earlier determination that Claim 12 was procedurally defaulted and barred from federal review. (Id.) The Court concluded, citing Clabourne v. Ryan, 745 F.3d 362, 382 (9th Cir. 2014), that the state court’s alternative merits ruling was subject to review under § 2254(d).[1]

Respondents further contend the Court committed manifest error in its application of § 2254(d) and Strickland. Specifically, Respondents argue the Court erred in its assessment of Strickland’s prejudice prong by failing to reweigh the totality of the mitigating evidence against the aggravating factors. Here, Respondents repeat arguments made previously (Doc. 335 at 42-46), which is cause for denial under L.R. Civ. P. 7.2(g). In any event, the arguments are without merit.

The Court found that Apelt was prejudiced by sentencing counsel Villareal’s deficient performance because “[t]he magnitude of the difference between the mitigating evidence that was presented at sentencing and the evidence that could have been presented through a competent investigation is sufficient to undermine confidence in the outcome.” (Doc. 359 at 26-27.) In making that determination, the Court necessarily took into account the aggravating factors as well as the totality of the mitigating evidence. There was no error.

Respondents’ motion to reconsider will be denied.

2. Apelt is Entitled to Habeas Relief

In its prior order, the Court noted it was unclear whether an evidentiary hearing was required or appropriate. (Doc. 359 at 28). In making that observation, the Court also pointed out that an evidentiary hearing would give Respondents the opportunity to “challenge the veracity of Apelt’s evidence.” (Doc. 359 at 28). Respondents have declined an evidentiary hearing because “the existing record, including the extensive record from the state-court Atkins v. Virginia . . . hearing, is sufficient to resolve Claim 12.”[2] (Doc. 363 at 2). Respondents also state they “have interviewed Villarreal” and he “would offer testimony generally consistent with the multiple affidavits he has presented in this case and the facts that are readily apparent from the record.” (Doc. 363 at 2). Given that Apelt agrees no evidentiary hearing is needed, one will not be held. (Doc. 364 at 2). The Court notes, however, an evidentiary hearing would have been especially useful to assess whether Villareal’s performance was, in fact, deficient. But Respondents do not argue Villareal performed competently. Accordingly, the Court will focus only on the issue of prejudice.[3]

The Court noted that Villareal’s case in mitigation omitted evidence directly contradicting the argument that Apelt’s childhood was “normal” as presented to the trial court at sentencing. (Doc. 359 at 9-12.) This evidence, presented to the state court by PCR counsel, was of extreme poverty, physical abuse, developmental delays, and mental health problems. (Id.) PCR counsel also presented ...

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