United States District Court, D. Arizona
Honorable Rosemary Marquez, United States District Judge.
February 14, 2019, the Court granted Petitioner Shad Daniel
Armstrong's motion for access to his relatives on the
grounds that A.R.S. § 13-4433 does not apply to these
federal habeas proceedings directly or through the adoption
of its specific limitations under the federal Crime
Victims' Rights Act (“CVRA”). (Doc. 123.)
Pending before the Court is Respondents' motion for
reconsideration. (Doc. 126.) As directed by the Court (Doc.
134), Petitioner filed a response on March 8, 2019 (Doc.
141). Crime victims S.A., G.A., L.A., C.J., and J.W. (the
“Victims”) filed a joinder in Respondents'
motion for reconsideration on March 15, 2019. (Doc. 143.)
for reconsideration should be granted only in rare
circumstances. See Defenders of Wildlife v. Browner,
909 F.Supp. 1342, 1351 (D. Ariz. 1995).
“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, Multnomah
Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993). Motions for reconsideration will ordinarily be denied
“absent a showing of manifest error or a showing of new
facts or legal authority that could not have been brought to
[the Court's] attention earlier with reasonable
diligence.” LRCiv 7.2(g)(1).
to the Local Rules of Civil Procedure, “[n]o motion for
reconsideration may repeat any oral or written argument made
by the movant in support of or in opposition to the motion
that resulted in the Order.” LRCiv 7.2(g)(1). Motions
for reconsideration should not be used for the purpose of
asking a court “to rethink what the court had already
thought through-rightly or wrongly.” Defenders of
Wildlife, 909 F.Supp. at 1351 (internal quotation marks
omitted). Mere disagreement with a previous order is an
insufficient basis for reconsideration. See Leong v.
Hilton Hotels Corp., 689 F.Supp. 1572, 1573 (D. Haw.
Motion for Reconsideration repeats arguments already
considered and rejected by this Court, in violation of Rule
7.2(g)(1) of the Local Rules of Civil Procedure. Although
Respondents' violation of Rule 7.2(g)(1) is itself
“grounds for denial of the motion, ” LRCiv
7.2(g)(1), the Court will nevertheless analyze whether
Respondents have identified any proper grounds for
is not appropriate based upon newly discovered evidence or an
intervening change in law, as Respondents do not identify any
new evidence or intervening legal authority that could not
have been brought to the Court's attention earlier with
reasonable diligence. Respondents rely upon the same
non-binding District of Arizona cases that they repeatedly
relied upon in prior briefs. (Compare Doc. 126 at
6-9; with Doc. 88 at 3; Doc. 94 at 10; Doc. 119 at
4-5.) The Court previously distinguished those
cases, finding that no prior District of Arizona case
addressing the victim contact issue presented “the
complex factual issues alleged here: that the victims in the
case are also family members who represent a potentially
untapped and primary source of mitigation to which Petitioner
was denied access by application of state law, and that
Petitioner has now been informed that Petitioner's mother
refuses to receive correspondence from Petitioner's
defense team during federal habeas proceedings.” (Doc.
91 at 2-3.)
argue that reconsideration is appropriate because the Court
did not address two of Respondents' arguments: that
Petitioner's motion fails to present a case or
controversy, and that applying the Arizona Victims Bill of
Rights (“VBR”), and specifically, A.R.S. §
13-4433, is consistent with the CVRA. To the extent
Respondents are contending that the Court overlooked these
matters, they are incorrect. The Court specifically rejected
the latter argument in its February 14, 2019 order.
(See Doc. 123 at 2 (“The Court . . . rejects
Respondents' . . . argument that ‘informally'
enforcing the terms of the VBR in these proceedings is
consistent with a liberal interpretation of the federal
CVRA.”).) The Court implicitly rejected the former
argument; the Court found that A.R.S. § 13-4433 does not
apply to these federal habeas proceedings, and thus it
follows that there was no need for Petitioner to attempt to
comply with A.R.S. § 13-4433 prior to bringing the
victim contact issue before the Court. In any event,
Petitioner did comply with the contact requirements of A.R.S.
§ 13-4433 in attempting to send a letter to
Petitioner's mother through the Attorney General's
office. (See Doc. 119 at 7; Doc. 21-8 at 32.) He
also satisfies the Article III “injury-in-fact”
standing requirement by alleging an intent to engage in a
constitutionally protected course of conduct-asking a
victim-relative directly for an interview-that is proscribed
by a statute for which violations carry a credible threat of
disciplinary action. See Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 163-65 (2014) (a threat of
“administrative action, like arrest or prosecution,
” is sufficient for Article III standing).
argue that the Court erred in characterizing the VBR as a
mere state procedural rule that could be set aside in federal
court. (Doc. 126 at 3.) Again, Respondents are incorrect; in
its February 14, 2019 order, the Court specifically
recognized the “procedural and substantive
rights” that crime victims are granted under the VBR.
(Doc. 123 at 1.) Further, Respondents inaccurately
characterize this Court's order as ignoring provisions of
the Arizona Constitution, which provides victims the right to
refuse an interview, but, notably, does not prohibit
defendants or defense counsel from directly contacting
victims. Compare A.R.S. Const. Art. 2 §
2.1(A)(5) with A.R.S. § 13-4433(B) and
Rule 39, Ariz. R. Crim. P. Only Arizona's implementing
legislation and state rules prohibit direct contact with
victims; the substantive rights embodied in the state
constitution do not. The State also cites no authority for
the proposition that a state constitution can affect federal
judicial proceedings. Finally, Respondents have not
identified any authority, much less any binding authority,
holding that A.R.S. § 13-4433 is directly controlling in
federal habeas proceedings, nor have they identified any
clear error or manifest injustice in the Court's refusal
to adopt the specific limitations of A.R.S. § 13-4433
into the protections already afforded habeas victims under
non-parties, the Victims do not have a right to directly
file, or join in Respondents' filing, in this habeas
proceeding. While they may assert the rights granted to them
under the CVRA, see 18 U.S.C. § 3771(b)(2)(B),
the Victims' motion does not assert or ask for
enforcement of a specific right under the CVRA. Nonetheless,
the Court recognizes that it is the Court's duty to
ensure victims' rights under the CVRA are protected in
this habeas proceeding. 18 U.S.C. § 3771(b)(2)(A). The
Court notes that the holding of its February 14, 2019 order
does not mean that defense counsel's conduct toward
victims in this case is without constraint. The CVRA
establishes “the right to be treated with fairness and
with respect for the victim's dignity and privacy.”
18 U.S.C. § 3771(a)(8). The Court expects all counsel in
this case to comply with the protections provided by the
CVRA. . . . . . . . .
have failed to show that reconsideration is appropriate based
on newly discovered evidence, an intervening change in law,
clear error, or manifest injustice. See School Dist. No.
1J, 5 F.3d at 1263. Accordingly, their Motion for
Reconsideration will be denied.
IS ORDERED that the Motion for Reconsideration ...