United States District Court, D. Arizona
Michael Apelt, Petitioner: Dana Carpenter, LEAD ATTORNEY, Law
Office of Dana Carpenter, Phoenix, AZ; Emily Katherine
Skinner, Arizona Capital Representation Project, Tucson, AZ.
Charles L Ryan, Respondent: Kristina Beth Reeves, LEAD
ATTORNEY, Office of the Attorney General - Phoenix - Capital
Litigatio, Phoenix, AZ; Lacey Stover Gard, Office of the
Attorney General, Tucson, AZ.
George Herman, Warden, Arizona State Prison - Eyman Complex,
Respondent: Kristina Beth Reeves, Office of the Attorney
General - Phoenix - Capital Litigatio, Phoenix, AZ; Lacey
Stover Gard, LEAD ATTORNEY, Office of the Attorney General,
Roslyn O. Silver, Senior United States District Judge.
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.)
forth below, the Court will deny the motion for
reconsideration and grant relief on Claim 12.
Motion for Reconsideration is Denied
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.
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. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). (Doc. 359 at 20-27.)
contend the Court committed manifest error by applying
Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272
(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).
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.
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
motion to reconsider will be denied.
Apelt is Entitled to Habeas Relief
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."  (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