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Nogueda v. Peery

United States District Court, E.D. California

June 20, 2016

SUZANNE M. PEERY, Respondent.



         Petitioner is a state prisoner represented by the Federal Defender[1] proceeding with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2] Previously pending on this court’s law and motion calendar for February 18, 2016, was respondent’s motion for reconsideration of the court’s order granting an evidentiary hearing on the shackling claim, filed October 9, 2015. Petitioner has filed an opposition, to which respondent has filed a reply. Sean Riordan appeared for petitioner. Justain Riley represented respondent. At hearing, the court ordered petitioner to file a proffer of what testimony might be presented at an evidentiary hearing in order to assist in the determination of respondent’s motion for reconsideration, and vacated the scheduled evidentiary hearing. Respondent was directed to file a response. (ECF No. 38.) Having reviewed all filings and heard oral argument, the court now issues the following order granting the motion for reconsideration, and denying petitioner’s claim of ineffective assistance of trial counsel in failing to object to petitioner being shackled during the trial.


         On May 20, 2015, this court denied most of petitioner’s claims, but granted the claims of ineffective assistance of counsel in regard to failure to request an instruction that required the semi-automatic weapon to be loaded (Claim Four concerning Counts 7 and 9).[3] In regard to the claim of ineffective assistance of trial counsel in failing to object both before and during trial to petitioner’s shackling at trial, the undersigned found that the state court of appeals made an unreasonable determination of the facts in first logically inferring that petitioner was restrained during trial based on the trial court’s shackling instruction, but then inconsistently reasoning, “defense counsel may not have insisted on a ruling against restraints for the simple reason that defendant was not physically restrained in court. The record does not show there were any restraints placed on defendant during trial.” The undersigned also noted that the court of appeals was merely speculating that counsel may not have sought a ruling against restraints because no shackling occurred. This inference was not reasonable in light of the other conflicting inference that could have been drawn as well, that shackling did occur. Other facts, such as whether restraints were visible or not, or whether shackling occurred only to and from the courtroom, were at this point speculation only, such that an evidentiary hearing was necessary.[4] The undersigned concluded that the inadequate record on shackling required such a hearing in order to determine the performance and prejudice prongs of Strickland. (ECF No. 28 at 29-30.)


         Respondent requests that this court reconsider its prior ruling of May 20, 2015, ordering an evidentiary hearing on the issue of shackling at trial.

         Parties seeking reconsideration should demonstrate “new or different facts or circumstances [which] are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion” and “why the facts or circumstances were not shown at the time of the prior motion.” E.D. Cal. L.R. 230 (j); see United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (reconsideration appropriate for a change in the controlling law, facts, evidence, or other circumstances; a need to correct a clear error; or a need to prevent manifest injustice); see also School Dist. No. 1J, Multnomah County v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

         Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party seeking reconsideration of a district court’s order must brief the “new or different facts or circumstances [] claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion.” The rule derives from the “law of the case” doctrine which provides that the decisions on legal issues made in a case “should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice.” Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).

         “After thoughts” or “shifting of ground” are not appropriate bases for reconsideration. Fay Corp. v. BAT Holdings I, Inc., 651 F.Supp. 307, 309 (W.D. Wash.1987), aff’d, 896 F.2d 1227 (9th Cir.1990). The standards “reflect[ ] district courts’ concern for preserving dwindling resources and promoting judicial efficiency.” Costello v. United States Government, 765 F.Supp. 1003, 1009 (C.D. Cal.1991). “While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.’” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed.2000)).

         Here, respondent initially argued that petitioner had not fulfilled certain requirements in state court that would permit him to obtain an evidentiary hearing in federal court, which resulted in only the skeletal record that was presented on direct appeal, such as failing to request more evidence on shackling or to seek an evidentiary hearing, failing to attempt to settle or augment the record on the issue of shackling, and failing to seek habeas review in state court in order to develop new evidence. As a result, respondent argues, 28 U.S.C. § 2254(e)(2) bars additional evidence.

         Petitioner countered that he exercised reasonable diligence in attempting to augment the record in state court, and that any failure should be excused due to his attorney’s failures.

         However, the proffer submitted by petitioner’s counsel makes the above arguments inconsequential. It is unnecessary to address whether Horton v. Mayle, 408 F.3d 570, 582 n. 6 (9th Cir 2005) applies in this case, as petitioner suggests, or whether an evidentiary hearing is barred by 28 U.S.C. § 2254(e)(2), as urged by respondent, because an evidentiary hearing would be futile based on the proffer submitted by petitioner. The proffer supplies the grounds for the undersigned to reconsider his prior order.

         Petitioner’s proffer for evidentiary hearing is based on interviews with petitioner’s trial counsel and five jurors. Defense counsel states that she did not renew her motion for unshackling because petitioner was only shackled during transportation to and from the courtroom, but not inside the courtroom. She requested the jury instruction because she knew it was possible jurors may have seen petitioner shackled outside the courtroom at some point. She did not make a motion for petitioner to be un-shackled outside the courtroom because based on her experience, it was the custom in that courthouse that such motions would not be entertained. (ECF No. 39.)

         Interviews with five jurors revealed the following: none of the jurors saw petitioner shackled inside the courtroom. One juror thought she saw petitioner shackled outside the courtroom but was not sure if it was him, or if he was shackled. One juror saw petitioner outside the courtroom being escorted by officers with his hands in front of him as if he were shackled. One juror saw petitioner shackled outside the courtroom, in a hallway of the courthouse. One juror saw petitioner shackled once in the crosswalk between the Yolo County Jail and the courthouse. The fifth juror said she did not see petitioner shackled but did see other defendants shackled outside the courtroom. The jurors who saw petitioner shackled said it did not affect their verdict. One of ...

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