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Leslie v. McGrath


September 27, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Petitioner moves pursuant to Federal Rules of Civil Procedure Rule 59(a) and (e), to alter or amend the Court's April 22, 2005 judgment denying Petitioner's request for writ of habeas corpus. Respondent opposes the motion. Having considered the parties' papers and the evidence cited therein, the Court denies Petitioner's motion.


Because the Court set forth the facts of this case in its April 22 Order, they are not restated here.

Rule 59(e) provides that "any motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment." Fed. R. Civ. P. 59(e). Rule 59(e) motions are interpreted as motions for reconsideration, and are appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994).

Motions for reconsideration are not a substitute for appeal or a means of attacking some perceived error of the court. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1980). "'[T]he major grounds that justify reconsideration involve an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)).

Petitioner contends that this Court committed clear error when it ruled that the prosecutor's misstatement that "Betsy said she saw the defendant stab Joe" in closing argument did not deprive Petitioner of his Fourteenth Amendment right to due process. Petitioner argues that the Court erred in finding the statement to be a "mischaracterization of Sergeant Cruz's testimony," "uttered spontaneously" as in United States v. Kojayan, 8 F.3d 1315, 1318 (9th Cir. 1993), rather than deliberate prosecutorial presentation of false evidence. See April 22 Order at 31.

Petitioner made the same argument in his habeas petition and traverse. A motion for reconsideration cannot be used to repeat any argument previously made to the Court. Furthermore, in the April 22 Order, the Court concluded that any untrue statement made by the prosecutor "was cured when the jury reheard the actual testimonial evidence from Sergeant Cruz" and by the fact that the jury had been instructed that closing argument was not evidence. See April 22 Order at 31-32. Thus, if there was prosecutorial misconduct it did not prejudice the outcome of the trial, and the Court did not err in denying Petitioner's due process claim.

Petitioner also contends that the Court erred when it concluded that California's invited error doctrine acted as a procedural bar which precluded consideration of Petitioner's Sixth Amendment Confrontation Clause claim, arising from the trial court's refusal to submit a limiting instruction to the jury after deliberations had begun. Petitioner argues that the invited error doctrine is inapplicable because a party who unsuccessfully objects to the introduction of evidence may elicit further evidence in mitigation. However, this again is a reassertion of arguments made in Petitioner's brief and thus is insufficient ground for a motion for reconsideration.

Next, Petitioner argues that the Court's statement in the April 22 Order at 26 that Petitioner "cites no authority that a trial court has a duty to give a limiting instruction requested after deliberations have begun" incorrectly put the burden on Petitioner instead of on the State to show a consistently applied State procedural bar. Petitioner misconstrues this statement. In the April 22 Order, the Court recognized that the State bears the burden to prove the adequacy of a State procedural bar. See April 22 Order at 23 ("The State bears the burden of proving the adequacy of a State procedural bar. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003)."). The Court held that the State met this burden. See April 22 Order at 24.

In fact, Petitioner did not argue that the invited error doctrine is not a clear, consistently-applied and well-established rule that acts as a procedural bar. Instead, as stated previously, Petitioner argued that the invited error doctrine did not apply under the circumstances of his case. The appellate court addressed this argument and found it to be incorrect. See Resp.'s Mem., Ex. 5, ex. 1 People v. Leslie at 8. This Court also addressed this argument. See April 22 Order at 24-25. The Court's statement to which Petitioner refers does not address whether the invited error doctrine acts as a procedural bar; it merely addresses the merits of Petitioner's argument that the trial court's ruling at the jury deliberation stage was incorrect. Therefore, the motion to alter or amend judgment on this ground is denied.


For the foregoing reasons, the Court DENIES Petitioner's motion to alter or amend judgment.



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