United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi, United States District Judge.
Before
the Court is Petitioner Darrel Lee's Motion for
Reconsideration. (Doc. 39.) Pursuant to Local Rule 7.2(g) of
the Local Rules of Civil Procedure, Lee asks the Court to
reconsider its order denying reconsideration of Claims 9(A)
and 9(D) of Lee's habeas petition. He also asks the Court
to expand the record to include a new expert report.
On
remand from the Ninth Circuit Court of Appeals, this court
addressed, in the light of intervening law, three claims of
ineffective assistance of trial counsel, including Claims
9(A) and 9(D). Applying Martinez v. Ryan, 566 U.S. 1
(2012), and Dickens v. Ryan, 740 F.3d 1302 (9th Cir.
2014) (en banc), the Court found that Claims 9(A) and 9(D),
which had been raised and denied on the merits in state
court, were not fundamentally altered, and therefore rendered
unexhausted, by new evidence presented in these habeas
proceedings. (Doc. 138.)
Motions
for reconsideration are disfavored and should be denied
“absent a showing of manifest error or of new facts or
legal authority.” L. R. Civ. P. 7.2(g). A motion for
reconsideration may not repeat arguments made in support of
or in opposition to the motion that resulted in the order for
which the party seeks reconsideration. Id. Lee
contends the Court misapplied Dickens and, with
respect to Claim 9(A), underestimated the import of the new
evidence. He also presents new evidence in support of Claim
9(D). The new evidence is a declaration dated April 22, 2019,
by Dr. John Edens, a psychologist. (Doc. 138, Ex. 1.)
DISCUSSION
For
claims that were adjudicated on the merits in state court,
like Claims 9(A) and 9(D), federal habeas review “is
limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In
Dickens, the Ninth Circuit ruled that
Pinholster does not apply to a claim that has been
“fundamentally altered” by new evidence because
such a claim was not adjudicated on the merits in state
court. 740 F.3d at 1320. The claim is therefore unexhausted,
defaulted, and subject to analysis under
Martinez.[1] Id. at 1318. Under
Dickens, a claim has not been exhausted in state
court if the new evidence fundamentally alters the legal
claim considered by the state court or places the case in a
significantly different and stronger evidentiary posture than
it was when the state court considered it. Id. at
1318-19.
A claim
of ineffective assistance of counsel is not fundamentally
altered by new factual allegations related to the specific
claim raised in state court. See Moormann v.
Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)
(“[T]his rule allows a petitioner who presented a
particular claim, for example that counsel was ineffective in
presenting humanizing testimony at sentencing, to develop
additional facts supporting that particular claim.”);
see also Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th
Cir. 2013); Escamilla v. Stephens, 749 F.3d 380, 395
(5th Cir. 2014).
Claim
9(A):
In
Claim 9(A), Lee alleged that trial counsel Politi performed
ineffectively by presenting an alibi defense he knew was
false. The Court denied the claim on the merits. (Doc. 93 at
33-48.) On remand, Lee argued that new evidence rendered the
claim fundamentally altered, unexhausted, and subject to
review under Martinez. (Doc. 120 at 16.) The new
evidence included the transcript of an interview between the
prosecutor, Suskin, and Lee's father. During the
interview Suskin stated that Lee had admitted to him that he
was present when the crimes were committed. The new evidence
also included a statement from Suskin that he had no
independent recollection of Lee telling him and Politi that
he was present at the crime but in light of the interview
transcript, “it is more likely than not that Darrel Lee
informed me and Mr. Politi that he was present when the
homicide was committed.” According to Lee, this
evidence shows that Politi knew he was presenting a false
alibi defense.
The
Court found that the new evidence “provide[d]
additional circumstantial support for [Lee's] allegation
that he told Politi of his involvement in the crimes. The
allegation itself, while somewhat stronger, is not altered at
all, nor is its posture significantly
different.” (Doc. 138 at 9 (emphasis added).) The
Court did not, as Lee asserts, “violate[] the second
prong of the test of Dickens” but instead
found that adding the new evidence to the claim heard by the
state court did not place the claim in a significantly
different posture under the analysis provided in
Dickens. Lee's disagreement with that assessment
is not grounds for reconsideration under L.R. Civ. P. 7.2(g).
Claim
9(D):
As
relevant here, in Claim 9(D) Lee alleged that counsel
performed ineffectively at sentencing by failing to
investigate and present available mitigating evidence,
including evidence that Lee was suffering from Cocaine
Withdrawal Syndrome, as opposed to cocaine intoxication, when
he and his codefendant kidnapped the victim. The Court
rejected Claim 9(D) on the merits. (Doc. 93 at 48-72.)
In his
motion for reconsideration, Lee asserts that the Court failed
to “address[] how significantly different and stronger
Lee's IAC claim became with new, uncontroverted evidence
that Lee suffered from Cocaine Withdrawal Syndrome.”
(Doc. 139 at 5.) This simply restates the argument made in
Lee's supplemental Martinez brief and rejected
by the Court.
In its
order denying reconsideration, the Court discussed the fact
that the state court was presented with evidence that the
purpose of the kidnapping was to get money to buy more
cocaine. (Doc. 138 at 12.) During the PCR evidentiary hearing
Dr. Morenz testified about Lee's condition at the time of
the crime, describing him as “strung out” as the
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