United States District Court, D. Arizona
Murray Elnow Chief United States District Judge
the Court is Petitioner Chad Alan Lee's Motion for
Reconsideration. (Doc. 171.) Pursuant to Rule 7.2(g) of the
Local Rules of Civil Procedure, Lee asks the Court to
reconsider its order denying relief on claims remanded
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
remand from the Ninth Circuit Court of Appeals, this court
addressed two claims of ineffective assistance of trial
counsel, Claims 2 and 5, and a claim of ineffective
assistance of appellate counsel, Claim 6. (Id.) The
Court found that the claims remain procedurally barred;
granted Lee's motion to expand the record, with the
exception of one exhibit, and denied his requests for
discovery and an evidentiary hearing; and granted a
certificate of appealability with respect to Claim 2.
motion for reconsideration, Lee asks the Court to (1) expand
the record to include all exhibits submitted in support of
his Martinez brief, including those attached at Doc.
167-1 and Exhibit Z; (2) grant his requests for discovery and
an evidentiary hearing; and (3) expand the certificate of
appealability to include Claims 5 and 6. (Doc. 171.)
for reconsideration are disfavored and should be denied
“absent a showing of manifest error or of new facts or
legal authority.” LRCiv 7.2(g). A motion for
reconsideration may not repeat arguments made in support of
the motion that resulted in the order for which the party
seeks reconsideration. Id.
Claim 2, Lee alleged that counsel performed ineffectively at
sentencing by failing to pursue evidence that Lee was exposed
to alcohol in utero. The Court found that the
procedural default of this claim was not excused under
Martinez because the underlying claim of ineffective
assistance of trial counsel was meritless. Specifically, the
Court found that trial counsel reasonably relied on the
opinion of his expert, Dr. McMahon, that Lee did not display
symptoms of fetal alcohol syndrome. (Doc. 170 at 15.) The
Court also found that Lee was not prejudiced by counsel's
performance at sentencing because evidence of fetal alcohol
syndrome would not have explained the fact that Lee played
the lead role in the murders and robberies and because the
aggravating factors were numerous and especially powerful.
(Id. at 18-19.)
contends that the Court should reconsider Claim 2 in the
light of supplemental evidence he submitted in support of his
contention that he suffers from fetal alcohol syndrome and
that there was wide awareness of the effects of fetal
exposure to alcohol at the time of Lee's trial.
(See Doc. 167-1.) After the Martinez
briefing was complete, Lee submitted a declaration by Dr.
Nancy Novick Brown, a forensic psychologist and expert in
fetal alcohol spectrum disorders, and a report by Dr. Philip
J. Mattheis, a developmental and behavioral pediatrician who
conducted a forensic examination of Lee and diagnosed him
with Partial Fetal Alcohol Syndrome and Neurodevelopmental
Disorder Associated with Prenatal Alcohol Exposure.
opinions of Drs. Brown and Mattheis are consistent with those
of experts cited in Lee's Martinez brief. This
supplemental information does not affect the Court's
determination that trial counsel's performance was
neither deficient nor prejudicial. As the Court explained, an
“expert's failure to diagnose a mental condition
does not constitute ineffective assistance of counsel, and [a
petitioner] has no constitutional guarantee of effective
assistance of experts.” Earp v. Cullen, 623
F.3d 1065, 1077 (9th Cir. 2010). Counsel was not obligated to
seek a second opinion. See Stokley v. Ryan, 659 F.3d
802, 813 (9th Cir. 2011). Nor does the supplemental
information alter the Court's prejudice calculation,
given Lee's role in the crimes, as a leader and not a
follower, and the strength of the aggravating factors.
motion for reconsideration, Lee, while citing the
supplemental materials, merely repeats his argument that Dr.
McMahon was not qualified to render an opinion on fetal
alcohol syndrome and therefore counsel performed
ineffectively in not seeking additional expert assistance.
(Doc. 171 at 2-3.) Repeating arguments is inappropriate under
7.2(g) (“No motion for reconsideration of an Order may
repeat any . . . argument made by the movant in support of or
in opposition to the motion that resulted in the
the claim that trial counsel performed ineffectively by
failing to pursue evidence of fetal alcohol syndrome is
without merit, PCR counsel did not perform ineffectively in
failing to raise it. Sexton v. Cozner, 679 F.3d
1150, 1157 (9th Cir. 2012). (“PCR counsel would not be
ineffective for failure to raise an ineffective assistance of
counsel claim with respect to trial counsel who was not
constitutionally ineffective.”). The default of Claim 2
is therefore not excused under Martinez and the
claim remains barred from federal review.
motion for reconsideration of Claim 2 is denied. The Court
will expand the record to include the supplemental materials.
renews his request for discovery and an evidentiary hearing
in support of Claim 2. The Court previously found that Lee
failed to show “good cause” to depose counsel and
that an evidentiary hearing was not warranted because there
were no contested facts concerning the performance of
Lee's counsel, because Lee failed to indicate what
evidence he sought to develop at a hearing, and because the
Court already determined that the claim was meritless. (Doc.
170 at 21-22.) Beyond reiterating that Claim 2 is ...