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Lane v. United States

United States District Court, D. Arizona

April 19, 2018

Michael Rocky Lane, Petitioner,
v.
United States of America, Respondent.

          ORDER

          David G. Campbell, United States District Judge

         Petitioner Michael Rocky Lane filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on December 2, 2016. Doc. 1. On December 14, 2017, Magistrate Judge Charles R. Pyle issued a Report and Recommendation (“R&R”) that the Court deny the motion on the merits. Doc. 23. On April 2, 2018, the Court issued an order accepting the R&R and denying Petitioner's motion (the “Order”). Doc. 32. The Clerk entered judgment accordingly. Doc. 33. Petitioner now moves pro se for reconsideration of the Order under Rule 59(e). Doc. 38.[1]

         On April 13, 2018, Petitioner filed a notice of appeal of the Order and the Clerk's judgment. Doc. 39. The Court nonetheless retains jurisdiction to decide Petitioner's timely motion for reconsideration pursuant to Federal Rule of Appellate Procedure 4(a)(4). See also Miller v. Marriott Int'l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002); United Nat. Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1109 (9th Cir. 2001) (Notice of appeal did not “divest the district court of jurisdiction at the time it was filed because there was then a pending motion for reconsideration.”).

         I. Legal Standard.

         Motions for reconsideration are disfavored and are not the place for parties to make new arguments not raised in their original briefs and arguments. See Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Nor should such motions ask the Court to rethink what it has already considered. See United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) (citing Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Rule 59(e) permits alteration or amendment only if: (1) newly discovered evidence has been presented, (2) the Court committed clear error, (3) the judgment is manifestly unjust, or (4) there is an intervening change in controlling law. See United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009).

         II. Discussion.

         Petitioner's § 2255 motion, filed through counsel, raised five grounds for relief. Doc. 1. Each ground alleged ineffective assistance based on his trial or appellate counsel's failure to make various arguments. Id.

         Petitioner's motion for reconsideration argues that the Court improperly excluded “evidence of [Petitioner's] subjective belief of legality” at trial, thereby denying him the opportunity to present a complete defense in violation of the Sixth Amendment. Doc. 38 (citing Case 12-CR-01419, Doc. 364). Petitioner asserts that such evidence was relevant to proving the knowledge requirement under the Controlled Substance Analogue Enforcement Act of 1986, as explained in McFadden v. United States, 135 S.Ct. 2298 (2015). Id.

         Petitioner's McFadden argument is something of a moving target. His § 2255 motion argued that “McFadden changed the knowledge requirement for analogues and should be applied to this case, and counsel was ineffective for failing to point out that the knowledge element required Lane to know both the chemical structure of the analogue and the chemical structure of the controlled substance.” Doc. 7 at 3. Judge Pyle and this Court correctly noted that the jury instructions in Petitioner's case required the government to prove that Petitioner knew the analogues at issue had a chemical structure substantially similar to a controlled substance. Doc. 23 at 19-20; Doc. 32 at 7-8. Because this comports with McFadden, Petitioner's counsel did not err by failing to urge the McFadden standard at his trial - it was already being applied.

         In his objection to the R&R, Petitioner shifted his argument a bit, asserting that his counsel erred by failing to argue that Petitioner believed what he was doing was legal. Doc. 24. The Court noted in response that even under McFadden, “ignorance of the law is typically no defense to criminal prosecution[.]” Doc. 32 at 8; McFadden, 135 S.Ct. at 2304. True, the government after McFadden must meet a knowledge requirement:

That knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance-that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act-regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue. The Analogue Act defines a controlled substance analogue by its features, as a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II”; “which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than” the effect of a controlled substance in schedule I or II; or which is represented or intended to have that effect with respect to a particular person. § 802(32)(A). A defendant who possesses a substance with knowledge of those features knows all of the facts that make his conduct illegal, just as a defendant who knows he possesses heroin knows all of the facts that make his conduct illegal. A defendant need not know of the existence of the Analogue Act to know that he was dealing with “a controlled substance.”

Id. at 2305 (emphasis added). If a defendant possesses this knowledge, he need not also know that his conduct is illegal. See United States v. Beltran-Flores, 707 Fed.Appx. 495, 496 (9th Cir. 2017) (finding that McFadden “does not imply that the government must prove that a defendant knew that their conduct was illegal”). As a result, the Court correctly concluded in its previous order that Petitioner's counsel was not ineffective by failing to argue that Petitioner believed what he was doing was legal.

         In his current motion, Petitioner shifts his argument again. He now asserts that the Court precluded him at trial from presenting any evidence of his subjective belief of legality, and that counsel was ineffective for failing to object. Doc. 38 at 2. But the Court drew the same line as the Supreme Court. It did not permit him to argue that he subjectively believed his actions were legal, but it did permit him to rebut every knowledge and intent element the government was required to prove:

The Court will grant the government's motion in limine with respect to any evidence or argument that Defendants believed their conduct to be legal, or any advice-of-counsel defense. In light of the government's proof requirements as set forth above, however, Defendants may present evidence and argument that they did not know the substances at issue in this case had chemical structures substantially similar to that of a controlled substance or that the substances had substantially similar physiological ...

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