United States District Court, D. Arizona
G. Campbell United States District Judge
Dennis Hipskind filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On March 6,
2018, the Court accepted Magistrate Judge Michelle H.
Burns's report and recommendation (R&R) and denied
the petition. Doc. 27. The Clerk entered judgment
accordingly. Doc. 28. Petitioner now moves for
reconsideration under Rule 59 of the Federal Rules of Civil
Procedure. Doc. 32. For the reasons set forth below, the
Court will deny the motion.
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:
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).
The R&R and the Court's Order Accepting It.
§ 2254 petition asserted seven grounds for relief (Doc.
1), but the Court did not reach the merits. Petitioner's
claims are both barred by the one-year statute of limitations
under the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) and procedurally defaulted.
See Doc. 27.
Petitioner's Rule 59 Arguments.
motion for reconsideration argues that his seven grounds for
relief “have been so minimized as to disguise the real
facts not to reveal the actual constitutional issues.”
Doc. 32 at 2. But the Court did not reach the substance of
Petitioner's grounds for relief because the claims are
time barred. See Doc. 27 at 4-7; 28 U.S.C. §
also argues that certain findings are “in error and
contrary to the record or to Arizona law.” Doc. 32 at
3. But the findings Petitioner cites appear in the state
court's opinion denying Petitioner's state petition
for post-conviction relief. See Doc. 27 at 2-3. The
Court quoted this opinion solely for background purposes.
Id. The Court made no findings regarding the merits
of Petitioner's grounds for relief.
motion also reargues several of his claims on the merits.
See Doc. 32 at 9-12. The Court did not consider the
substance of the claims in its order accepting the R&R,
and will not consider them in the context of a Rule 59
Statute of Limitations.
respect to the statute of limitations, Petitioner argues -
just as he did in his objections - that the 28-day period
between the Arizona Court of Appeals' issuance of the
initial mandate and Petitioner's filing of a motion to
recall the mandate should be tolled. Doc. 32 at 3-4; see
also Doc. 23 at 3. Petitioner has not shown
circumstances warranting reconsideration of this issue.
concedes that the relevant facts are undisputed and does not
assert newly discovered evidence, an intervening change in
law, or manifest injustice. See Doc. 32 at 3-4. He
simply repeats his argument that the state appellate
court's granting of Petitioner's motion to recall
rendered the initial mandate null and void for purposes of
AEDPA's statute of limitations. Id. As explained
in the Court's order, the statute of limitations is
tolled only while a state post-conviction proceeding is
“pending.” Doc. 27 at 6; 28 U.S.C. §
2244(d)(2). After the Arizona Court of Appeals ...