The opinion of the court was delivered by: William Alsup United States 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 inthe 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 decided.
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 ...