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Hipskind v. Ryan

United States District Court, D. Arizona

June 19, 2018

Dennis Alan Hipskind, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge

         Petitioner 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.

         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. The R&R and the Court's Order Accepting It.

         Petitioner's § 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.

         III. Petitioner's Rule 59 Arguments.

         Petitioner's 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. § 2244(d).

         Petitioner 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.

         Petitioner's 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 motion.

         A. Statute of Limitations.

         With 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.

         Petitioner 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 ...


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