United States District Court, E.D. California
ORDER DENYIN MOTION FOR RECONSIDERATION DOC.
#’S 321, 322 AND 323
On May
13, 2016, the court issued a Memorandum Opinion and Order
Denying Petitioner’s Motions for Relief Pursuant to
F.R.C.P. 60(b) and to Reopen Motion Pursuant to 28 U.S.C.
§ 2255. Doc. # 320 (hereinafter, the “May 13
Order”). Currently before the court is the motion of
Victor Lamont Brown (“Petitioner”) to reconsider
the court’s May 13 Order. For the reasons that follow
Petitioner’s motion will be denied.
First,
some clarification of the motion now before the court is in
order. On June 20, 2016, Petitioner filed a handwritten
version of his motion for reconsideration. Doc. # 321. On
July 1, 2016, Petitioner filed a motion to amend the motion
for reconsideration by filing a typed version of the same
motion. Doc. # 322. That motion will be granted; thus, the
substance of Petitioner’s motion for reconsideration is
fully set forth in Doc. # 323 (hereinafter
“Petitioner’s Motion”). Second, the court
notes that Petitioner’s Motion is, in essence, a motion
for reconsideration of the denial of a motion for
reconsideration. Taken as such, the court finds that the
legal standard set forth in the court’s May 13 Order is
again applicable to the motion currently before the court and
need not be repeated here. To the extent Petitioner may be
under the impression that a different legal standard applies
in this instance because his Motion is framed as being
pursuant to F.R.C.P. 59(e), that impression is mistaken. The
legal standard set forth in Doc. # 320 applies in for
purposes of this Motion and is incorporated here by
reference.
In its
May 13 Order, this court noted that Petitioner’s claim
for violation of his Sixth Amendment right to counsel arising
out of the court’s denial of separate counsel during
consideration of his motion for substitution of counsel was
precluded by the appellate court’s decision that the
trial court did not abuse its discretion in denying the late
motion for substitution of counsel. Petitioner argues in his
current Motion that the court erred in making that
determination. Petitioner’s Motion explains how,
contrary to this court’s May 13 Order, the law of the
case established by the appellate court’s decision does
not apply to bar his claim that he suffered a Sixth Amendment
depravation of right to counsel as follows:
Nonetheless, with respect to the merits, the [this] court is
mistaken in concluding that Petitioner’s denial of
counsel claim is barred by law of the case. To the contrary,
because these two claims concerning the same October 30,
2000, substitution of counsel are factually and legally
distinct, the old abuse of the writ doctrine is inapplicable.
On direct appeal Petitioner raised the claim, that the
district court “abused its discretion” in denying
[Petitioner’s] belated motion for substitution.
[Citation.] By contrast, on collateral review, Petitioner
asserted that the Sixth Amendment right to counsel was
violated when [Petitioner] was denied separate counsel for
the substitution of counsel hearing, where he was placed in
an adversarial position against an experienced opponent, his
own trial attorney. Thus, the two claims are legally distinct
because one claim concerned the court’s abuse of
discretion, while the other concerned Petitioner’s
constitutional guarantee to counsel. Accordingly, the Ninth
Circuit’s resolution of the former substantive claim,
in no way precludes this Court’s consideration of the
latter.
Doc. # 323 at 13-14.
Petitioner’s
argument is unpersuasive for two reasons, the first and most
compelling of which is that he has procedurally defaulted on
his Sixth Amendment claim. “Where a defendant has
procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either ‘cause’
and actual ‘prejudice, ’ [Citations] or that he
is ‘actually innocent.’ [Citations.]”
Bousley v. United States, 523 U.S. 614, 622, 118
S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). Here, Petitioner
states explicitly that he raised the claim of abuse of
discretion related to the denial of substitution of counsel
on direct review but that he did not raise the
“related” issue of denial of his Sixth Amendment
Right to counsel. Petitioner offers no cause for the
procedural default nor can he establish prejudice since he
cannot show there exists any probability that the decision by
the trial court would have been any different had he been
represented by separate counsel, given the appellate
court’s unqualified finding of no abuse of discretion.
The doctrine of procedural default is intended in part to
prevent what Petitioner is trying to accomplish here - the
re-argument of a decided issue based on a slightly different
framing of the same facts and outcome that were addressed on
direct appeal.
A
second and equally compelling reason for the rejection of
Petitioner’s argument is that he simply did not suffer
denial of assistance of counsel. The fact that Petitioner was
required to state his reasons for the motion to substitute
counsel outside the presence of his counsel is not an
instance of being without a counsel, it is merely an
opportunity for a defendant to explain his reasons for or
against the motion for substitution directly to the court
without the intermediation of his attorney. This procedure is
a normal part of the safeguarding the defendant’s right
to counsel, not an abrogation of that right. The court knows
of no authority that requires a separate attorney to
represent a defendant’s effort to change or substitute
his counsel.
As the
court understands Petitioner’s argument with regard to
his Motion, he seeks the opportunity to present his
“substantive” argument that he was denied his
Sixth Amendment right to counsel because he was denied the
right to make that substantive argument earlier because his
appellate attorney suffered from alcoholism. As the court
explained in its May 13 Order, the court has reviewed his
appellate attorney’s submissions and finds no evidence
of incapacity reflected in them. Also as explained in the May
13 Order, at this stage of the proceedings Petitioner can
only be granted substantive review of his conviction
or sentence by adducing evidence that was previously
unavailable that he is factually innocent of the crimes of
which he was convicted. Merely pointing out that an argument
could have been framed differently or hypothesizing that some
other defense might have been more successful is not
sufficient.
THEREFORE,
for the reasons discussed above, it is hereby ORDERED that:
1. Petitioner’s Motion to Amend is GRANTED.
2. Petitioner’s Motion pursuant to Rule 59(e) is hereby
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