The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
The United States has proceeded against defendant under a series of multi-count indictments. One of the counts, a felon-in-possession charge, was tried to a jury in a bifurcated trial. The jury convicted defendant on September 17, 1996, and defendant appealed. On March 22, 2002, the Court of Appeals granted defendant's motion to remand "for the limited purpose of enabling [this] court to consider [defendant's] post-conviction motion based on new evidence." Pl Opp (Doc #702) Ex 1 (9th Cir Docket). Defendant filed a FRCrP 33 motion for a new trial, Doc #597, which this court denied on December 5, 2002, Doc #607 (the "Order"). That motion concerned whether defendant's rights under Brady v. Maryland, 373 US 83 (1963), and its progeny were violated with respect to certain "taped recordings of communications among dispatchers and police officers made on the night defendant was arrested and his residence searched." Order (Doc #607) at 6:14-16. The court concluded (after a lengthy factual inquiry) that the recordings in question had been turned over to the defense, and thus no Brady violation had occurred.
By the present motion, Doc #697, defendant seeks leave to file a motion for reconsideration of the Order. The Criminal Local Rules do not have their own provisions regarding motions for reconsideration; they incorporate the Civil Local Rules. Crim L R 2-1. Civil Local Rule 7-9 governs motions for reconsideration, which may be made only by leave of court. Although captioned a "motion for reconsideration," the court construes the present motion as a motion for leave to file a motion for reconsideration. Such a motion must not "repeat any oral or written argument made by the applying party in support of or in opposition to the interlocutory order which the party now seeks to have reconsidered." Civ L R 7-9(c). The motion for leave must show at least one of the following:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.
Defendant seeks leave to argue for reconsideration on two grounds. First, he argues that "the Court's Order [on the Rule 33 motion] establishes ineffective assistance of counsel as a matter of law." Pl Mot (Doc #697) at 1:8-9. Defendant's argument is that if the recordings in question were in fact turned over to his counsel (as the court found they were), then counsel's failure to present those recordings as evidence fell below the objective standard of reasonableness required by Strickland v Washington, 466 US 668 (1984).
Whatever the substantive merit of this argument, it is procedurally improper in this posture for three reasons. First, the Ninth Circuit's remand was for the limited purpose of considering a claim "based on new evidence." In context, this cannot fairly be read to include an ineffective assistance of counsel claim. Second, because the ineffectiveness argument was not presented to the court in the original Rule 33 motion, defendant must show an intervening factual or legal development. He cannot; the predicate for his ineffectiveness claim was as available to him in 2002 as it is today. Third, ineffective assistance of counsel claims may not be raised in a Rule 33 motion; a § 2255 habeas corpus proceeding is the proper vehicle for such a claim. As the Ninth Circuit has held:
We hold that a Rule 33 motion based upon "newly discovered evidence" is limited to where the newly discovered evidence relates to the elements of the crime charged. Newly discovered evidence of ineffective assistance of counsel does not directly fit the requirements that the evidence be material to the issues involved, and indicate that a new trial probably would produce an acquittal. * * * [Moreover], a remedy exists. The newly discovered ineffective assistance of counsel (or conflict of interest) may be raised in a habeas corpus petition.
United States v Hanoum, 33 F3d 1128, 1130-31 (9th Cir 1994).
Defendant's second ground for seeking reconsideration is an asserted change in the law governing Brady claims. He cites Gantt v Roe, 389 F3d 908 (9th Cir 2004), and Banks v Dretke, 540 US 668 (2004), arguing that the "affirmative duties [of prosecutors] as set forth in Gantt set a new standard for ethical conduct." Pl Mot (Doc #697) at 1:13-14. Having reviewed the requirements of Brady and its progeny that are recited at length in the Order, see Doc #607 at 4-6, and having reviewed Gantt and Banks, the court must disagree. Neither case sets a "new standard for ethical conduct." They do not purport to break new legal ground (both cases are unanimous on the applicable legal standard, often a signal that novelty is absent), and the decisions themselves are applications of well-established law to a new set of facts. As such, the court must question whether there has been any "change of law" within the meaning of Civ L R 7-9(b)(2).
Moreover, both cases concern actual withholding of evidence; the court found in the Order that "[ATF Agent] Gray mailed the tapes, assigned bates number 540-542, to [defense counsel] Taback on March 27, 1995, along with a letter identifying the contents of the materials sent." Order (Doc #607) at 8:18-20. Much discussion follows this statement, but all is directed at addressing defense counsel's assertions that they did not recall seeing the tapes. Defendant offers ...