The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
ORDER DENYING PETITIONER'S MOTION FOR PARTIAL RECONSIDERATION AND
GRANTING CERTIFICATE OF APPEALABILITY
Petitioner Rickey Alexander filed a petition for writ of habeas
corpus in this case pursuant to 28 U.S.C. 2255. By an order dated
March 21, 2005, this Court denied the petition in its entirety.
Judgment was entered in favor of respondent the same day. On
March 28, 2005, petitioner filed a notice of appeal. He also
moves this court for partial reconsideration of the denial of his
claims. Alternatively, the petitioner requests a certificate of
appealability under 28 U.S.C. 2253(c). The Court DENIES
petitioner's motion for partial reconsideration and GRANTS
petitioner's certificate of appealability.
1. MOTION FOR PARTIAL RECONSIDERATION.
Petitioner moves this for reconsideration pursuant to Rule 59.
A motion for reconsideration must be brought within 10 days of
the entry of judgment. As petitioner moved this Court eight days
after the judgment, the motion is timely.
Reconsideration is timely where (1) the district court is
presented with newly-discovered evidence, or (2) the district
court "committed clear error or the initial decision was manifestly unjust" or (3) there is an intervening change in controlling law.
School District No. 1J, Multnomah County v. ACandS, Inc., 5F.3d
1255, 1263 (9th Cir. 1993). A Rule 59(e) motion may not be used
to present for the first time arguments or evidence that could
reasonably have been presented earlier in the litigation.
Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
Petitioner asks this court to reconsider the denial of
petitioner's claim that trial counsel was ineffective for failing
to investigate and challenge priors used to enhance petitioner's
sentence in light of a 2005 Supreme Court case, Shepard v.
United States, 125 S.Ct. 1254 a case that relies on the
principles of Booker v. New Jersey, 530 U.S. 466 (2000).
Petitioner argues that Shepard calls into question People v.
Tuggle, 232 Cal. App.3d 137 (1991), a case this Court relied on,
in part, in denying the habeas petition. This Court's order,
denying writ, approved the state appellate court's reliance on
People v. Tuggle for the proposition that a plea to a violation
of robbery by force or fear proves both the elements of the
offense and all factual averments for the purposes of sentencing.
The crux of petitioner's argument in this motion is that the
holding of Booker calls Tuggle into question in that Booker
teaches that any fact other than a bare prior conviction
sufficient to raise the limit of the possible sentence must be
found by a jury. For the following three reasons, petitioner's
motion is denied.
First, as petitioner concedes, a new rule of constitutional
criminal law applies only retrospectively to cases that are not
yet final. Petitioner was sentenced to life in state prison on
May 4, 1992. Booker was decided in 2004 twelve years after
this petitioner's case was final. Petitioner submits that the
rules announced in the Booker line of cases are applicable to
this case under Teague v. Lane, 489 U.S. 288 (1989), which
carves out an exception, holding that "watershed" rules or rules
"implicit in the concept of ordered liberty" apply
retrospectively to cases that are final. Teague,
489 U.S. at 307. At this time, there is no case law that states that the
Booker line of cases rise to the level of "watershed" rules.
Second, a petitioner may not use a Rule 59 motion to present
for the first time arguments or evidence that could reasonably
have been presented earlier in the litigation. Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). While petitioner
bases his motion on Shepard, a 2005 case, as the "intervening
change in controlling law" that allows him to make a timely
motion, it is clear that he could have made this argument in his initial habeas petition.
Petitioner filed his traverse in September 2007. Booker was
decided in 2000. The crux of his argument, however, is less based
on Shepard and more based on the principles of Booker;
therefore, just as petitioner crafts his argument in this motion
by linking Booker to a very recent case, he could have made
practically the same argument when he brought his original writ,
linking another chain of cases to Booker.
Third, petitioner's Booker-argument is the linchpin for his
claim for ineffective assistance of counsel. This makes little
sense. Under ineffective assistance of counsel, the question is
whether counsel's performance fell below an objective standard of
reasonableness under prevailing professional norms. In 1992, the
principles of Booker were not part of the knowledge bank of the
professional norm; there is no way counsel could have raised a
Booker argument in 1992, twelve years before the case was
For the foregoing, reasons, petitioner's motion for partial
reconsideration is DENIED.
2. CERTIFICATE OF APPEALABILITY.
A district court judge shall grant a certificate of
appealability "only if the applicant has made a substantial
showing of the denial of a constitutional right."
28 U.S.C. 2253(c)(2). Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy 2253(c) is straightforward: the petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 483 (2000).
Petitioner advanced two claims of ineffective assistance of
counsel and one claim of trial misconduct. The ineffective
assistance of counsel claims focused on claims against his trial
and appellate counsel. First, he argued that his trial counsel
rendered ineffective assistance of counsel when (1) he failed to
exclude a statement made by the victim that was made immediately
after the assault, (2) he failed to investigate the crime scene,
(3) he failed to investigate whether the petitioner's two prior
robbery convictions qualified as enhancements under California
law and (4) he failed to challenge the validity of a former
robbery conviction used to enhance his conviction. Second,
petitioner argues that his appellate counsel was ineffective by
not challenging the trial court's denial of his motion to
substitute counsel and by failing to raise each of the four ways
in which trial counsel had allegedly been ineffective. Third,
petitioner's final claim was for prosecutorial misconduct based
on the prosecutor's introduction of testimony of Inspector Gudelj
and Officer Maffei.
Although this Court denied all of petitioner's claims,
reasonable jurists may disagree. As such, petitioner's claims are
certified for appeal. The Clerk of the Court shall transmit the
file, including a copy of ...