1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Scott Drake Clabourne, No. CV-03-00542-TUC-RCC
10 Petitioner, DEATH PENALTY CASE
11 v. ORDER
12 Ryan Thornell, et al.,1
13 Respondents.
14 Before the Court is Petitioner Scott Clabourne’s Motion to Alter or Amend the 15 Judgment Pursuant to Rule 59(e). (Doc. 94.) The motion is fully briefed. (Docs. 97, 98.) 16 For the following reasons, Clabourne’s motion is denied. 17 Background 18 The Court denied Clabourne’s Amended Petition for Writ of Habeas Corpus on 19 September 09, 2009. (Doc. 41.)2 In doing so, the Court dismissed Claim 1 as procedurally 20 defaulted. (Id. at 17.) Claim 1 alleges counsel was ineffective for not seeking to suppress 21 Clabourne’s confession at his resentencing. Under then-governing law, the Court rejected 22 Clabourne’s argument that the ineffective assistance of post-conviction relief (PCR) 23 24 25 1 Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Ryan Thornell, the Director of the Arizona Department of Corrections, Rehabilitation and Reentry, is 26 substituted for the former Director, David Shinn. 27 2 “Doc.” refers to numbered documents in this Court’s electronic case docket. 28 1 counsel established cause and prejudice to excuse the default. (Id. at 15–16.) 2 On appeal, the Ninth Circuit vacated the denial of Claim 1 and remanded the claim 3 to this Court for further proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012). 4 Clabourne v. Ryan (Clabourne IV), 745 F.3d 362, 383 (2014), overruled on other grounds 5 by McKinney v. Ryan, 813 F.3d 798 (2015). Martinez held that the ineffective assistance 6 of PCR counsel can excuse the default of a claim of trial level ineffective assistance of 7 counsel (IAC). 8 Upon remand, the Court found Clabourne had failed to demonstrate cause and 9 prejudice under Martinez to excuse the default of Claim 1 and entered judgment denying 10 the claim as procedurally defaulted and barred from federal review. (Docs. 92, 93.) 11 Clabourne asserts that in doing so, the Court “misapprehended the law in two significant 12 respects.” (Doc. 94 at 4.) 13 Applicable Law 14 A motion to alter or amend judgment under Rule 59(e) is in essence a motion for 15 reconsideration. Rule 59(e) offers an “extraordinary remedy, to be used sparingly in the 16 interests of finality and conservation of judicial resources.” Kona Enter., Inc. v. Est. of 17 Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also Rishor v. Ferguson, 822 F.3d 482, 491– 18 92 (9th Cir. 2016). The Ninth Circuit has consistently held that a motion brought pursuant 19 to Rule 59(e) should only be granted in “highly unusual circumstances.” Id.; see also 389 20 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 21 Reconsideration is appropriate only if the court is presented with newly discovered 22 evidence, if there is an intervening change in controlling law, or if the court committed 23 clear error. McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per curiam); see 24 School Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 25 1993). 26 A motion for reconsideration is not a forum for the moving party to make new 27 arguments not raised in its original briefs, Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 28 841 F.2d 918, 925–26 (9th Cir. 1988); see also Zimmerman v. City of Oakland, 255 F.3d 1 734, 740 (9th Cir. 2001) (holding district court did not abuse its discretion by disregarding 2 legal arguments and facts previously available but raised for the first time under Rule 3 59(e)), nor is it the time to ask the court to “rethink what the court ha[s] already thought 4 through,” United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998). The fact 5 that a petitioner disagrees with the court’s conclusion is also an insufficient basis to seek 6 reconsideration under Rule 59(e). United States v. Westlands Water Dist., 134 F.Supp.2d 7 1111, 1131 (E.D. Cal. 2001) (“A party seeking reconsideration must show more than a 8 disagreement with the Court’s decision, and recapitulation of the cases and arguments 9 considered by the court before rendering its original decision fails to carry the moving 10 party’s burden.”) (quotations omitted). 11 Discussion 12 A. Admissibility of Clabourne’s confession. 13 Clabourne first asserts the Court misapprehended the law of limited admissibility 14 set forth in Federal and State Rules of Evidence 703 and 705. Clabourne argues that the 15 Court failed to consider these rules, which would have permitted the resentencing court to 16 consider the contents of the inadmissible confession in evaluating the expert testimony 17 without rendering the confession itself admissible. 18 1. Additional background 19 The procedural and factual background of this case is discussed in greater detail in 20 this Court’s order finding Claim 1 procedurally defaulted without excuse. (See Doc. 92 at 21 2–14.) Briefly, on the evening of September 18, 1980, Laura Webster entered the Green 22 Dolphin Bar with a friend. The next day, Webster’s body was found near the Santa Cruz 23 River, naked and wrapped in a bloody sheet with a blue and white bandana tied tightly 24 around her neck. An autopsy revealed that she had been strangled and then stabbed in the 25 chest. There was also evidence of oral, anal, and vaginal intercourse just prior to death. 26 Clabourne was incarcerated on burglary charges unrelated to the murder of Webster 27 and had invoked his right to counsel when he was interviewed by Tucson Police Detective 28 Luis Bustamante and confessed his involvement in Webster’s death. Clabourne confessed 1 that he, along with co-defendants Larry Langston and Ed Carrico, convinced her to leave 2 the bar with them to go to a party. While driving to a residential home, Langston stopped 3 the car, pulled Webster out, and beat her. After he threw her back into the car Webster 4 pleaded with Clabourne to protect her. 5 At the house, Langston beat Webster again and forced her to strip and serve the men 6 drinks. Over a period of six hours, Langston and Carrico repeatedly beat and raped 7 Webster. During this time, Clabourne also had sex with Webster but claimed it was 8 consensual. At several points during the ordeal, Webster again pleaded with Clabourne to 9 protect her from the others. 10 At the end of the evening, Langston told Clabourne to kill Webster. Clabourne 11 maintained that he was in fear of his own life and wanted to let her escape but was scared 12 Langston would kill him. He strangled her with a bandana that he carried with him. He 13 then stated that Langston handed him a knife; Clabourne stabbed Webster twice and the 14 three men wrapped her in a sheet and threw her in the riverbed. 15 The trial court allowed this confession to be admitted into evidence in Clabourne’s 16 trial and considered factors derived solely from the confession during sentencing. 17 The prosecution introduced evidence of other incriminating statements Clabourne 18 made. Clabourne’s girlfriend testified that Clabourne had admitted committing the crime 19 on several occasions and that the bandana around the victims’ neck was similar to one that 20 belonged to Clabourne. Another acquaintance testified that Clabourne had confessed to 21 killing a girl. A corrections officer testified that Clabourne told him, spontaneously, about 22 the crime approximately a month before giving his taped confession. Clabourne told him 23 he and another man picked a girl up from a bar and, while driving to a friend’s house, the 24 girl begged Clabourne not to let the other man hurt her, that she was afraid he might kill 25 her. At the house, they continued to “party, drink and carry on” and Clabourne indicated 26 he and the other man had sex with the girl. Clabourne confessed to then strangling her. He 27 also stated the other man gave him a knife and told him to kill her, though he did not say 28 anything about stabbing the victim. (Appx. 321.) A second corrections officer testified that 1 he overheard Clabourne tell another inmate, “Yeah, I raped her. She didn’t want it but I 2 know she liked it.” 3 Subsequently, the Supreme Court in Arizona v. Roberson, 486 U.S. 675 (1988), held 4 that such a subject who had invoked his right to counsel could not be questioned about 5 other crimes, making Clabourne’s confession prospectively inadmissible. Clabourne IV, 6 745 F.3d at 379 (citing Roberson, 486 U.S. at 684–85). Nonetheless, counsel did not move 7 to suppress the prosecutor’s use of the confession during resentencing in 1997. The 8 prosecutor attached the confession to his sentencing memorandum and referred to facts 9 from the confession throughout the aggravation/mitigation hearing. 10 The trial court resentenced Clabourne to death. Although the court found cruelty 11 alone sufficient to establish death eligibility under A.R.S. § 13-701(F)(6), it also found that 12 the murder had been committed in an especially heinous and depraved manner, the other 13 component of the (F)(6) aggravator.3 Though this finding was based in part on Clabourne’s 14 statements to Detective Bustamante, the court also found that Clabourne witnessed the 15 repeated beatings and sexual assaults by other co-defendants and displayed a callous 16 indifference to Webster’s life, thus “demonstrating a heinous and depraved state of mind.” 17 (RT 08/14/97 at 8.) The Arizona Supreme Court affirmed the death sentence and Clabourne 18 initiated habeas proceedings in 2003. 19 On habeas review, Clabourne asserted his resentencing counsel was ineffective for 20 failing to seek suppression of his confession and that he was prejudiced because, without 21 the confession, there was insufficient evidence to establish cruelty under A.R. S. § 13-
22 3 “Because the elements of the (F)(6) factor—‘heinous, cruel, or depraved’—are 23 stated in the disjunctive, a finding of cruelty alone is sufficient to support an (F)(6) 24 aggravating circumstance.” State v. Clabourne (Clabourne III), 194 Ariz. 379, 384, 983 P.2d 748, 753 (1999) (citing State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983)). 25 Under Arizona law, a murder is committed in an especially cruel manner if “the victim 26 consciously experienced physical or mental pain prior to death.” State v. Sansing, 206 Ariz. 232, 235, 77 P.3d 30, 33 (2003) (quoting State v. Trostle, 191 Ariz. 4, 951 P.2d 869, 883 27 (1997)). The victim need not be conscious, however, when “each and every wound” is 28 inflicted. Sansing, 206 Ariz. at 235, 77 P.3d at 33 (quoting Trostle, 191 Ariz. at 4, 951 P.2d at 883). 1 703(F)(6). As noted above, the Court dismissed the claim as procedurally defaulted, 2 rejecting Clabourne’s argument that the ineffectiveness of PCR counsel excused the 3 default. (See Doc. 41 at 16.) 4 On appeal, following the Supreme Court’s decision in Martinez, the Ninth Circuit 5 remanded the confession-related IAC claim, concluding that there was “no dispute in this 6 case about the deficient performance of Clabourne’s post-conviction counsel, as the State 7 concede[d] that his representation was deficient.” Clabourne IV, 745 F.3d at 378. The 8 Ninth Circuit, however, stopped short of finding that counsel’s failure to object to use of 9 the confession constituted ineffective assistance. See id. at 380. (“That there was a basis to 10 object to the use of Clabourne’s statement at resentencing (or to move to suppress it) does 11 not by itself establish that Clabourne suffered from ineffective assistance through 12 resentencing counsel’s failure to make that objection.”) In his supplemental Martinez brief, 13 Clabourne argued that in the absence of his confession, the balance of the prosecution’s 14 evidence fails to meet the burden of proof necessary to establish the (F)(6) factor. (See Doc. 15 71 at 23.) 16 The Court found that the record supported “a finding that counsel were aware of the 17 confession, its prospective inadmissibility, and the State’s intent to rely on it to establish 18 the sole statutory aggravating factor ‘especially heinous, cruel, or depraved’ under A.R.S. 19 § 13-703(F)(6).” (Doc. 92 at 24.) The Court also found that Clabourne failed to overcome 20 the presumption that defense counsel’s actions were reasonable and strategic. (Id. at 37) 21 Thus, the Court concluded that the default of Claim 1 could not be excused under Martinez, 22 and again denied the claim as procedurally defaulted. (Id. at 40.) 23 The Court noted Clabourne had a duty to rebut the presumption that counsel acted 24 competently by demonstrating that “his attorney’s representation was unreasonable under 25 prevailing professional norms and that the challenged action was not sound strategy.” (Id. 26 at 27) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).) The Court noted its 27 responsibility to “affirmatively entertain” the range of possible reasons counsel proceeded 28 as they did. (Id.) (citing Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013).) 1 Upon review of the record, the Court determined that it is “at least arguable” that a 2 reasonable attorney could decide to forego challenging the resentencing court’s use of 3 Clabourne’s confession in the circumstances present here. (Id.) (citing Harrington v. 4 Richter, 562 U.S. 86, 106 (2011)). The Court found that at the time counsel returned to 5 state court for the resentencing it would have been reasonable for counsel to believe that, 6 even if they succeeded in suppressing the confession during resentencing, the (F)(6) 7 aggravating factor would again be found by the resentencing court.4 (Id. at 31.) The Court 8 explained: 9 There is no doubt that the murder was particularly senseless, and the victim was totally helpless at the hands of her captors, as the State pointed out on 10 appeal and as evidenced by the victim’s pleas for help . . . . As the 11 resentencing court noted, Clabourne “was also a witness to the repeated beating and sexual assaults by other co-defendants. At the very least this 12 Defendant displayed a callous indifference to Laura Webster’s life, 13 demonstrating a heinous and depraved state of mind.” . . . 14 Given the overwhelming likelihood the State would again establish the (F)(6) aggravating factor, with or without the confession, it was objectively 15 reasonable for defense counsel to focus their efforts on establishing the strongest available case in mitigation, and the record demonstrates this is 16 what counsel did. In pursuing this strategy, they provided their experts “with 17 a more complete history of Clabourne and more information about the crime than they had received before trial,” Clabourne III, 194 Ariz. at 383, 983 18 P.2d at 752, and relied on Clabourne’s confession in support of their 19 mitigation theory. 20 (Id. at 32) (citations omitted) (emphasis added). The Court further explained: 21 [C]ounsel . . . at the sentencing phase, faced with a client convicted of first- 22 degree murder, three counts of sexual assault (oral, anal, and vaginal 23 24 4 In the first order denying the claim as procedurally defaulted in 2009, the Court considered the impact of the confession and found that, “first and foremost, other evidence 25 supported the cruelty finding.” (Doc. 41 at 16.) “[E]ven without Petitioner’s confession, 26 there was sufficient evidence from which a trier of fact could conclude that the victim feared for her life and suffered greatly before being killed.” (Id. at 17.) Clabourne therefore 27 failed to demonstrate that “no reasonable factfinder would have found, even without 28 consideration of his confession, the existence of the cruelty prong of the (F)(6) factor.” (Id.) 1 intercourse), and kidnapping, all unassailable findings during the sentencing proceeding, made a reasonable strategic decision to pursue a mitigation 2 theory of duress that was consistent with Clabourne’s confession and with 3 the opinion of his expert. Clabourne’s confession provided evidence of duress that his experts placed within the context of Clabourne’s mental 4 illness. Clabourne’s experts explained that, due to Clabourne’s mental illness 5 and paranoia, he feared Langston and thus it was more likely he was manipulated by Langston into committing the murder. 6 . . . 7 Counsel’s strategy to rely on the confession to support a claim of mental 8 illness and duress was reasonable, comprehensible, and logically consistent with the guilt-phase presentation, and, in the words of his own expert, “a 9 terribly important dynamic to present to the sentencing judge.” 10 (Id. at 36–37) (emphasis added). 11 2. Analysis 12 Clabourne now contends that the Court “misapprehended the law” by failing to 13 apply the law of limited admissibility set forth in Federal Rules of Evidence 703 and 705 14 and the Arizona Rules of Evidence 703 and 705. (Doc. 94 at 4.) 15 The Federal and State Rules of Evidence are identical and provide for the limited 16 admissibility of facts underlying the opinions of defense experts. See Fed. R. Evid. 703, 17 705; Ariz. R. Evid. 703, 705. Under these rules, Clabourne argues, resentencing counsel 18 could have admitted the expert testimony in support of his mitigation theory while not 19 admitting the confession itself. The Court erred, Clabourne asserts, by “suppos[ing] that 20 resentencing counsel strategically needed for Clabourne’s Edwards-inadmissible 21 confession to be substantively admitted because it underlaid the expert testimony that had 22 been submitted on Clabourne’s behalf,” a flaw “immediately apparent” to anyone versed 23 in the Rules of Federal Evidence. (Doc. 94 at 3.) “Resentencing counsel did not need for 24 [the prosecutor] to substantively admit Clabourne’s Edwards-inadmissible confession 25 simply because it underlaid their experts’ opinions.” (Id.) 26 Clabourne misunderstands the Court’s ruling. The Court previously held that, absent 27 the confession, there was “sufficient evidence from which a trier of fact could conclude 28 that the victim feared for her life and suffered greatly before being killed.” (Doc. 92 at at 1 31) (citing Doc. 41 at 16–17.) Thus, in denying Clabourne’s Martinez claim, the Court 2 found that “at the time counsel returned to state court for the resentencing, it would have 3 been reasonable for counsel to believe that, even if they succeeded in suppressing the 4 confession during resentencing, the (F)(6) aggravating factor based on cruelty would still 5 be found.” (Doc. 92 at 31); see also Clabourne IV, 745 F.3d at 381 (“Other facts identified 6 in the Arizona Supreme Court’s discussion of the aggravating circumstances were 7 supported by other evidence in the record. Multiple witnesses testified concerning 8 incriminating statements made by Clabourne, including that the victim had been raped and 9 that she had begged for help. Based on the autopsy she performed on the victim, the medical 10 examiner testified at trial about the beating and sexual activity that the victim suffered 11 before her death, as well as the strangling and stabbing.”) 12 Additionally, the trial court had found there was “sufficient evidence of gratuitous 13 violence to support a finding of depravity and heinousness. The victim was near death after 14 the strangulation and the stabbing was unnecessary to accomplish the murder. Still 15 defendant stabbed her twice, once through the heart.” Clabourne I, 142 Ariz. at 348, 690 16 P.2d at 67. Clabourne did not challenge this finding on appeal. 17 Thus, this Court concluded, based on counsel’s perspective at the time of 18 resentencing, it was reasonable for counsel to believe that, even if they had successfully 19 suppressed the confession, the (F)(6) factor would be established regardless. Based on this 20 conclusion, the Court found that, rather than focus their efforts on challenging the 21 admissibility of the confession, it was objectively reasonable for counsel to pursue their 22 strongest case in mitigation. Counsel did so, conceding what was no doubt going to be 23 proven with respect to the question of the (F)(6) aggravator that, “[w]ithout question, . . . 24 this was a truly horrible case.” (RT 8/8/97 at 26). Counsel thus attempted to establish, 25 through the testimony of experts and through Clabourne’s own words, that Clabourne 26 believed he would have been killed if he had refused to kill Webster. (See id. at 38.) This 27 mitigation theory had the added benefit of being consistent with the guilt phase testimony, 28 during which the confession had been properly admitted under the controlling law at the 1 time. See ABA Guidelines § 10.10.1 (2003) (“Counsel should seek a theory that will be 2 effective in connection with both guilt and penalty, and should seek to minimize any 3 inconsistencies.”) 4 In affirming the death sentence after resentencing, the Arizona Supreme Court 5 found beyond a reasonable doubt that the murder was especially cruel: 6 [Here,] [Webster] suffered both mentally and physically. She was beaten and forced to undress and serve [Clabourne] and his friends drinks. In addition, 7 she was raped over the course of a six hour period. She was obviously in 8 great fear [for] her life as she begged [Clabourne] to protect her. The medical examiner testified that [Webster] had put up a tremendous struggle while 9 being strangled, indicating a good deal of suffering. This evidence was 10 sufficient to establish cruelty. 11 Clabourne III, 194 Ariz. at 384, 298 P.2d at 753 (citing State v. Clabourne, 142 Ariz. 335, 12 347-48, 690 P.2d 54, 66-67 (1984)). 13 Subtract the confession from this calculus, and the factors that remain still support 14 a finding of the (F)(6) aggravator. The victim was beaten, raped, pled for her life, and put 15 up a tremendous struggle. Add to this the trial court’s finding, unchallenged by Clabourne, 16 that the murder was heinous and depraved because there was “sufficient evidence of 17 gratuitous violence to support a finding of depravity and heinousness. The victim was near 18 death after the strangulation and the stabbing was unnecessary to accomplish the murder. 19 Still defendant stabbed her twice, once through the heart.” Id. at 348, 690 P.2d at 67. Thus, 20 counsel could reasonably assume that any attempt to prevent the trial court from again 21 finding the (F)(6) aggravating factor would have been futile. 22 Clabourne asserts that counsel could have pursued his case in mitigation by simply 23 presenting the experts’ opinions without admitting the confession. Counsel could, he 24 argues, have presented evidence that Clabourne was not the mastermind, but a follower, 25 based on only his expert’s testimony. But the admission of Clabourne’s own words, 26 contemporaneous with his arrest and not based solely on expert testimony, declarations or 27 allocutions provided 15 years after he was convicted, provided stronger support for 28 counsel’s theory of mitigation. If it was not clear from the order, the Court now clarifies 1 that the Court did not, as Clabourne now contends, suggest counsel’s actions in admitting 2 the confession were reasonable and strategic on the grounds that Clabourne’s experts relied 3 on the confession and mistakenly believed the confession needed to be admitted, but rather 4 the Court found the confession itself was strong evidence in support of counsel’s mitigation 5 theory. 6 Clabourne argues counsel have “more and better ways” of presenting the content of 7 the statement without “relying on the mere accident of the prosecutor attaching an 8 otherwise inadmissible confession to his sentencing memorandum.” (Doc. 94 at 5.) 9 Clabourne suggests the statement could have been admitted via “a client’s letter to the 10 court, a probation interview, a psychological interview, Clabourne’s allocution, his sworn 11 testimony, his sentencing memoranda, sentencing letters from others, and statements by 12 counsel.” But these methods would not have overcome the difficulty pointed out by the 13 prosecutor during sentencing, that, despite new evidence establishing Clabourne may have 14 been schizophrenic or psychotic, no expert testified as to Clabourne’s state of mind at the 15 time of the offense. (See RT 8/8/97 at 54.) At the time of Clabourne’s resentencing, it 16 would have been reasonable, even imperative for counsel to attempt to establish a causal 17 connection between the experts’ mitigating evidence and the crime. At Clabourne’s first 18 sentencing, the sentencing court noted that Clabourne had not shown that his capacity to 19 appreciate the wrongfulness of his conduct or to conform his conduct to the requirements 20 of the law was a factor in the commission of the offense. (Doc. 81-6, Ex. F at 17–18); see 21 also Mckinney, 813 F.3d 798 (noting that, during a time period that encompassed 22 Clabourne’s resentencing, evidence of a mental disorder “was relevant for nonstatutory 23 mitigation only if it had a causal effect on the defendant’s behavior in the commission of 24 the crime at issue.”) In this case, counsel acknowledged the need to establish a causal 25 connection, and established that connection by presenting Clabourne’s confession. (See RT 26 8/8/97 at 65.) Given the state of the law at the time, this was at least an arguably reasonable 27 thing to do, and thus Clabourne has not established that the Court erred in finding his 28 counsel’s performance was not deficient. 1 A. Dr. Rao’s testimony 2 Next, Clabourne asserts the Court relied on the trial testimony of Valerie Rao, M.D., 3 the medical examiner, despite its demonstrable inconsistency with Dr. Rao’s autopsy 4 report. (Doc. 94 at 9–10.) Clabourne contends that the “Court erred in relying on the 5 testimony that was admitted at trial and sentencing, and, significantly, at resentencing, all 6 in violation of Napue [v. Illinois, 360 U.S. 264 (1959)].”5 (Id. at 13.) 7 1. Additional background 8 Dr. Rao testified that the victim had several bruises on her body: “on her hand, on 9 her arms, on her legs, … surrounding the stab wound[,] and she had them on her neck, too.” 10 (RT 11/17/82 at 256.) Among these bruises, ones on the victim’s thumbs indicated to Dr. 11 Rao that “she was struggling, and she sustained [them] probably in the struggle to get away 12 from the inevitable, what happened to her.” (Id. at 258.) Dr. Rao characterized these bruises 13 as “defensive-type injuries.” (Id.) 14 Clabourne asserted, in his supplemental Martinez brief, that Dr. Rao’s testimony 15 was incorrect as a matter of medical science and did not support a finding of physical pain 16 or mental anguish. (Doc. 71 at 23–26.) Clabourne relied on that assertion, in part, to bolster 17 his claim that he was prejudiced by the admission of the confession because without it the 18 balance of the prosecutor’s evidence failed to prove beyond a reasonable doubt that the 19 murder was cruel. (Doc. 71 at 23, 26.) The Court rejected Clabourne’s assertion as 20 irrelevant to the Court’s denial of the remanded claim because the Court decided the claim 21 on the performance factor and did not consider the prejudice factor. (Doc. 92 at 29, n.13.) 22
23 5 To the extent Clabourne is attempting to raise a new Napue claim (see Doc. 94 at 24 13) (asking the court to “order the parties to brief how the evidence admitted in violation of Napue should be treated by the Court . . . .”), the Court again notes that a motion for 25 reconsideration is not a forum for the moving party to make new arguments not raised in 26 its original briefs. See Nw. Acceptance Corp., 841 F.2d at 925–26. Additionally, this argument—a new claim—falls outside the scope of the Ninth Circuit’s remand to this 27 Court. Moreover, Clabourne has not been permitted by this Court to amend his petition to 28 include such a claim, nor has he been authorized by the Ninth Circuit to file a second or successive petition alleging such a claim. See 28 U.S.C. § 2244(b)(2). 1 The Court did not erroneously fail to consider this evidence because it was not relevant to 2 the performance factor on which its ruling rested. 3 2. Analysis 4 Clabourne now asks the Court to put “procedural wrangling aside” and address the 5 inconsistencies in Dr. Rao’s testimony and the Court’s erroneous reliance on that testimony 6 in violation of Napue. (See Doc. 94 at 10, 13.) The Court, however, is not persuaded that 7 Dr. Rao’s testimony is inconsistent with her autopsy report. 8 In determining that counsel’s performance was not unreasonable, the Court 9 considered whether the (F)(6) cruelty finding was supported by evidence apart from the 10 confession. In doing so, the Court implicitly relied on the presumption of correctness to 11 which a state court’s factual findings are entitled on federal habeas review. Clabourne bears 12 the “burden of rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 13 2254(e) (1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007); Miller-El v. Dretke, 545 14 U.S. 231, 240 (2005). Nothing in the state court record, including Dr. Rao’s testimony, 15 undermines the presumption of correctness that attaches to the state court’s finding that the 16 victim suffered defensive wounds. 17 Dr. Rao’s statement in her autopsy report, that “[t]here are no defense type wounds 18 noted,” is under the section reporting Dr. Rao’s observations of the “incised wounds” on 19 the victim’s “left chest.” (Doc. 74-7, Ex. 1 at Ex. p. 40.)6 Thus, the indication of no 20 defensive-type wounds in this section of the report suggests the victim did not attempt to 21 fight off the stabbing. Presumably, had she attempted to do so, the autopsy report would 22 have indicated that there were cuts on the victim’s arms, hands, or elsewhere besides the 23 two major wounds through her lung and heart. 24 In a separate section of the autopsy report describing the blunt force injuries 25 observed by Dr. Rao, there was no statement indicating whether the bruises could be 26 27 6 The Court refers to the evidence appended to his supplemental Martinez brief and 28 designated by both an exhibit number and a sequentially numbered exhibit page number as “Ex. [1–15] at Ex. p. [1–172].” 1 | interpreted as defensive wounds. (/d., Ex. 1 at Ex. p. 39.) Her testimony, therefore, describing the bruises on the victim’s thumbs as defensive-type wounds, was not inconsistent with her autopsy report in this regard. 4 Finally, to the extent the Court relied on the fact that the victim struggled to bolster 5 | its finding that counsel did not act unreasonably by predicting that the resentencing court would again find the (F)(6) factor on resentencing, the Court notes that there was other 7 | evidence of cruelty, including other evidence of a struggle, apart from Dr. Rao’s testimony 8 | that the discoloration on the victim’s thumbs indicated defensive wounds. Specifically, Dr. 9| Rao testified that the “tremendous hemorrhag[ing]” in the victim’s face and eyes indicate 10 | she put up a “tremendous struggle” against the strangulation. (RT 11/17/82 at 248, 255.) 11 The Arizona Supreme Court noted this as a factor in determining that the evidence 12 | indicated a good deal of suffering and was sufficient to establish cruelty. Clabourne IIT, 194 Ariz. at 384, 983 P.2d at 753. 14 Evidence independent of Dr. Rao’s testimony about defensive-type wounds 15 | established that the victim struggled. Clabourne therefore fails to demonstrate how, even ifthe Court disregards Dr. Rao’s observations concerning defensive wounds, it would have 17 | impacted the Court’s consideration of Clabourne’s Martinez claim and its finding that he 18 | failed to rebut the presumption that counsel performed deficiently. Conclusion 20 Clabourne has failed to establish the “highly unusual circumstances” that would necessitate granting a motion under Rule 59(e), such as newly discovered evidence, an 22 | intervening change in the law, or manifest error by the Court. The motion is therefore 23 | denied. See McDowell, 197 F.3d at 1255. 24 Accordingly, 25 IT IS HEREBY ORDERED Clabourne’s motion to alter or amend the judgment 26 | pursuant to Rule 59(e) (Doc. 94) is DENIED. 27 Dated this 13th day of February, 2023. 28 4] AK - Cyl □ Donorahle Paner Callines