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Barr v. Ryan

United States District Court, D. Arizona

January 13, 2016

Joel K. Barr, Petitioner,
v.
Charles Ryan, et al., Respondents.

ORDER

Eileen S. Willett United States Magistrate Judge

On December 22, 2015, the Court ruled on a number of pending motions. (Doc. 83). Petitioner has filed a Motion for Reconsideration (Doc. 84) requesting that the Court reconsider the portions of the Order that (i) denied Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)” (Doc. 62) and (ii) granted Respondents’ “Motion to Strike Proposed Interrogatories” (Doc. 58).[1] For the reasons discussed below, the Motion for Reconsideration (Doc. 84) is denied.

DISCUSSION

Motions for reconsideration are disfavored and are not the appropriate mechanism by which parties make new arguments or ask the Court to rethink that through which it has already thought. See N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir.1988); United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz. 1998); Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (motions for reconsideration should be granted only in rare circumstances). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multonomah County v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also LRCiv 7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.”).

A. Order Denying Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)” (Doc. 62)

Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)” (Doc. 62) requested that the Court expand the record to include four documents attached to the Motion. In his Motion for Reconsideration (Doc. 84 at 3), Petitioner points out that the Court’s Order (Doc. 83) explicitly discusses its reasons for denying the “Motion for [Further] Expansion” as to Attachment Nos. 1, 2, and 4, but does not discuss its reasons for denying the Motion as to Attachment No. 3.[2] The Court’s Order (Doc. 83 at 16), however, denied Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)” in its entirety. Therefore, Petitioner’s request for a ruling on Attachment No. 3 is denied as moot. (Doc. 84 at 3). To the extent Petitioner seeks a reconsideration of the Court’s denial of Petitioner’s Motion (Doc. 62) as to Attachment No. 3, the request is denied because Petitioner has not shown “manifest error” or presented “new facts or legal authority that could not have been brought to [the Court’s] attention earlier with reasonable diligence” that would change the Court’s ruling. See LRCiv 7.2(g)(1).

Petitioner also asks the Court to reconsider its denial of Petitioner’s request to expand the record to include Attachment No. 2 to Petitioner’s “Motion for [Further] Expansion of the Record (Third Request)” (Doc. 62). Attachment No. 2 is a document purported to be one of the State’s exhibits from Petitioner’s preliminary hearing, which was not admitted into evidence at the preliminary hearing. In his Motion for Reconsideration, Petitioner states that:

The point I failed to make clear, then, is this: Of the entire list of URL web addresses which comprise “Attachment #2, ” none of its web addresses match any of the web addresses of the charged images. This fact is tremendously significant in proving my innocence because if I, or anyone, had used the seized computer to visit the websites of the charged images, those websites of the charged images (Exhibit ZZZ, p. 247-263) would also appear in “Attachment #2 because “Attachment #2” is the State’s Exhibit purporting to show all of the “suspicious” websites visited using the seized computer since 8/15/2000.

(Doc. 84 at 4) (emphasis in original).

However, the 121 charged images are not visited websites, but are image files created on Petitioner’s computer. (Doc. 41-1 at 201-276). The descriptions of the 121 charged images detail the drive path specifications, which indicate the location of the file on Petitioner’s computer. (Id.; Doc. 34-2 at 36-62). Some of the images underlying Counts 4-124 contain superimposed text. For instance, superimposed on the image underlying Count 124 is the text “Masturbation Lolitas Series. Real Little Lolitas Porno. Full-Length Video Clips. Lesbian Lolitas, Girls-Lolitas Pictures, www.betterlolitas.com.” (Doc. 41-1 at 276). Contrary to Petitioner’s assertion in his Reply (Doc. 75-1 at 6-7), the description does not state that the image was downloaded from www.betterlolitas.com. Nor do the descriptions of any other image state that the image was downloaded from a particular website. Further, computer forensic analyst Joann Kennedy did not testify that any image was downloaded from a particular website. (Doc. 81-3 at 7-251; Doc. 41-1 at 168-276). Ms. Kennedy only opined that there is a correlation between the images created on Petitioner’s computer and the internet history on Petitioner’s computer. (Doc. 81-3 at 68). Moreover, Ms. Kennedy explained that the extracted list of visited websites may not be complete because some of the internet history may have been overwritten or deleted. (Id. at 49-50, 54). Therefore, Petitioner’s argument above that Attachment No. 2 is significant in proving Petitioner’s alleged innocence is without merit. Construing the argument liberally, however, it is possible that Petitioner intended to reiterate the following argument made in his “Reply to Respondent’s Response to Petitioner’s Third Motion to Expand the Record” (Doc. 75):

I have not yet found a precise correspondence between any of the charged images (Exhibit ZZZ, p. 247-262) and the websites of “Attachment #2.” Instead, I find more and more evidence of fraud.
For example: Beginning with the very First Charged Images (id., p. 247, #1), the State alleges that those images were created at 11:08:50 PM, and were exited (Last Written) at 11:09:02 PM on December 23, 2002.
However, according to Joann Kennedy’s URL list (“Attachment #2”) no website was visited that night, by that computer until 11:10:35 PM. In other words it was impossible to have downloaded those Charged Images when she said they were created. Because, in order to do so, the images would have had to ...

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