United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
pending before the Court are two motions for reconsideration
and one request to take an interlocutory appeal. The
parties' dissatisfaction with the current state of this
case stems from the fact that the state filed a
“limited” answer (Doc. 33), and then the
Magistrate Judge to whom this case was assigned issued a
Report and Recommendation (Doc. 43) (“R&R”)
based on this limited answer (rather than the case as a
whole). This Court then addressed the R&R in a way both
parties now seek to have reconsidered.
state's limited answer, the state argued that Petitioner
waived his right to pursue this collateral attack on his
sentence via his plea agreement. (Doc. 33 at 11-14). The
R&R concluded that the waiver did not preclude the claims
in this case. (Doc. 43 at 7-9). This Court agreed with that
conclusion albeit for different reasons. (Doc. 47 at 9-10).
Although Respondents disagree with this conclusion, neither
party seeks reconsideration on this point.
R&R went on to address the issue of exhaustion. (Doc. 43
at 4-7). The R&R concluded that the Supreme Court case of
Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718
(2016) did not create a new claim that required exhaustion in
state court and, alternatively, even if Montgomery
did create a new claim, Petitioner had exhausted a
Montgomery claim. (Id.) This Court
disagreed with both of these conclusions. (Doc. 47; Doc. 52).
Both parties have moved for reconsideration on one or both of
first to the issue of whether Montgomery created a
new claim, both parties now argue that this Court erred in
finding that Montgomery created a new claim that
must be exhausted in state court in addition to a claim based
on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455,
2460 (2012). Respondents argue, in part, that this
Court holding that Montgomery created a new claim
went beyond the scope of the state's limited answer.
However, in objecting to the R&R, Respondents discussed
Montgomery and whether it was a change in the law at
length. Due to this ambiguity, the Court ordered supplemental
briefing. (Doc. 52).
now articulate three possible choices for what
Montgomery did to the state of the law after
Miller. Option 1 is nothing substantive.
Montgomery merely procedurally made Miller
retroactive and did not expand the scope of Miller
in any way. (Doc. 53 at 6-7). Option 2 (which Respondents
advocate as an alternative position in the event option 1 is
rejected) is that Montgomery substantially expanded
the scope of Miller, so much so that
Montgomery created a new claim that would require
separate exhaustion in the state courts. (Doc. 53 at 7-8).
Finally option 3 is that Montgomery did not change
the intended holding of Miller but did change the
common understanding among courts of the actual holding in
Miller. (Doc. 53 at 8-13). As far as this Court can
tell, option 1 is Respondents position. Option 3 is
Petitioner's position (although Petitioner argues that at
least one court's understanding of Miller was
not changed by Montgomery).
point on reconsideration, Respondents are arguing that it was
wrong of this Court to decide that Montgomery
created a new claim that required separate exhaustion because
the Court effectively reached the merits of the Petition even
though Respondents filed only a limited answer. (Doc. 48 at
2-3). Further, Respondents argue that, given that both
parties agree that Montgomery did not create a new
claim, the Court should determine whether Petitioner is
entitled to relief based solely on Miller. (Doc. 53
at 1-2). Petitioner seems to agree with the premise
that Montgomery did not create a new claim that
requires separate exhaustion in state court (Doc. 57 at
that both parties now agree that neither advocates that
Montgomery created a new claim that must be
exhausted in state court at this time (subject to this
Court's review of the merits of this case), thus making
this Court's holding to the contrary at best premature
and at worst advisory, the Court will reconsider its prior
holding to the extent that the Court will defer a decision on
whether Montgomery created a new claim that requires
exhaustion in state court until the Court reaches the merits
of this case. This decision is without prejudice to
either party advocating that Montgomery created a
new claim during the Court's merits decision in this
case. Specifically, Respondents may make their alternative
argument as summarized herein (or any other argument).
Similarly, if an examination of option 1 or 3 (or some fourth
yet unidentified option) would cause Petitioner to be denied
relief, Petitioner is free, in the merits phase, to argue
that Montgomery created a new claim he should be
permitted to exhaust under the state law of
the Court turns to Petitioner's motion for
reconsideration regarding whether he in fact exhausted a
Montgomery claim. (Doc. 58). The Court previously held
that Petitioner did not exhaust a Montgomery claim.
(Doc. 52 at 2-3). The Court has reviewed Petitioner's
basis for seeking reconsideration, but does not find
reconsideration to be warranted. Accordingly, the motion will
the Court will deny Petitioner's request to take an
interlocutory appeal. (Doc. 49). Primarily, the Court will
deny the request because the Court is reconsidering the issue
Petitioner seeks to appeal. Alternatively, the Court does not
find an interlocutory appeal to be warranted in this case.
on the foregoing, The Court reconsiders its prior orders to
the extent that the Court does not find Montgomery
to be a separate claim that requires exhaustion at this time
reserving that decision to this Court's ultimate merits
resolution of this case. Both parties are free to argue
options 1 through 3 (or any other theories) on the merits of
this case. Reconsideration is denied in all other respects.
Accordingly, IT IS ORDERED that the motions
for reconsideration (Docs. 48 and 58), are granted in part as
specified above and denied in all other respects.
IS FURTHER ORDEDERED that the motion for
interlocutory appeal and motion to stay (Doc. 49) is denied.
IS FURTHER ORDERED this case is re-referred to
Magistrate Judge Bridget S. Bade pursuant to Rules 72.1 and
72.2 of the Local Rules of Civil Procedure for further
proceedings and ...