Frater v. United States

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Lee Frater, No. CV-19-02168-PHX-DGC (MHB) 10 Movant/Defendant, No. CR-14-01517-PHX-DGC

11 vs. 12 United States of America, ORDER 13 Respondent/Plaintiff.

14 15 16 David Frater filed a request for an “independent panel rehearing,” before three 17 judges, of the dismissal of his § 2255 motion to vacate his sentence in Case No. CR-14- 18 01517. Doc. 24.1 Because the court of appeals sits in panels of three judges and there is 19 no procedure for a three-judge district court panel in a case such as this, the Court construed 20 the request as a notice of appeal and directed the Clerk to docket it as such. Doc. 25 (citing 21 CR Doc. 136 (Ninth Circuit order construing a similar request as a notice of appeal); In re 22 Sweet Transfer & Storage Inc., 896 F.2d 1189, 1193-94 (9th Cir. 1990) (a document not 23 formally denominated a notice of appeal may be treated as one if it evinces the intent to 24 appeal)). The Ninth Circuit received the notice of appeal on June 26, 2020. Doc. 27. 25 Frater has now filed a motion stating that he refuses to accept an appeal as a 26 substitute for his request for an independent panel rehearing, and requesting that the notice

27 1 Citations to documents in the criminal case are denoted “CR Doc.” Citations are 28 to page numbers attached to the top of pages by the Court’s electronic filing system. 1 of appeal be withdrawn. Doc. 28 at 1. The Court accordingly will withdraw the notice of 2 appeal and consider Frater’s request for an independent panel rehearing on the merits. 3 I. Background. 4 Frater pled guilty to one count of possession of child pornography in violation of 18 5 U.S.C. §§ 2252 and 2256. CR Docs. 75, 131. On May 9, 2016, the Court sentenced him 6 to 125 months in prison followed by lifetime supervised release. CR Doc. 174. The Ninth 7 Circuit upheld the plea and sentence. CR Doc. 171; United States v. Frater, 735 Fed. 8 App’x 467 (9th Cir. 2018). 9 Frater asserted four grounds for relief in his § 2255 motion: (1) the New Zealand 10 police department unlawfully searched and seized his home computer; (2) the law requires 11 that the government produce a minimum of three verified pornographic images of children 12 who have been identified as victims; (3) unverified secondary evidence was presented in a 13 superseding indictment; and (4) outlawing sexually explicit photographs of children 14 propagates crimes against them by repressing information the public needs to identify 15 victims and perpetrators. Doc. 1 at 4-8. Magistrate Judge Michelle Burns issued a report 16 recommending that the motion be denied because none of Frater’s grounds for relief 17 concerned the voluntary and intelligent acceptance of his plea agreement. Doc. 15 at 2-3; 18 see also CR Doc. 103; United States v. Frater, No. CR-14-01517-PHX-DGC, 2016 WL 19 795839, at *4 (D. Ariz. Mar. 1, 2016) (denying Frater’s motion to withdraw his guilty plea). 20 The Court agreed with Judge Burns and denied Frater’s motion. Doc. 22. The Clerk 21 dismissed this action on April 30, 2020. Doc. 23. 22 II. Frater’s Request for an Independent Panel Rehearing. 23 Frater claims that the Court’s order denying his § 2255 motion is “prejudicial, 24 biased, flawed, [and] filled with multiple judicial errors and misstatements[,]” and requests 25 an “independent panel rehearing.” Doc. 24 at 1.2 Frater cites no rule or legal authority in 26 27 2 Frater makes other unfounded and offensive accusations about the undersigned and both the defense and government attorneys. Id. at 1-3. The accusations are wholly 28 inappropriate and will not be recounted or addressed in this order. 1 support of his request. This is not surprising because there is no legal rule or procedure 2 allowing for an independent panel rehearing at the district court level of a § 2255 motion. 3 Frater’s request for an independent panel rehearing will be denied. 4 To the extent Frater’s request can be deemed a motion for reconsideration of the 5 dismissal of his § 2255 motion, it will also be denied. Motions for reconsideration are 6 disfavored and should be granted only in rare circumstances. See Stetter v. Blackpool, No. 7 CV 09-1071-PHX-DGC, 2009 WL 3348522, at *1 (D. Ariz. Oct. 15, 2009). A motion for 8 reconsideration will be denied “absent a showing of manifest error or a showing of new 9 facts or legal authority that could not have been brought to [the Court’s] attention earlier 10 with reasonable diligence.” LRCiv 7.2(g)(1); see United Nat’l Ins. Co. v. Spectrum 11 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). Frater has failed to make this showing. 12 Judge Burns found that, in accepting the 2016 plea agreement, Frater “clearly and 13 expressly waived his right to bring an appeal or collateral attack and, as such, has waived 14 his claims raised in his § 2255 Motion[.]” Doc. 15 at 3. Frater objected to this finding, 15 arguing that his plea agreement was “non-binding” because the Court failed to sign and file 16 it. Doc. 18 at 1, 3. Contrary to Frater’s contention, the plea agreement was accepted 17 without objection at his sentencing on May 9, 2016, and the plea agreement was signed by 18 the Court and filed on that date. Doc. 22 at 3 (citing CR Docs. 131, 165 at 9). 19 After receiving Judge Burns’ recommendation, the Court reviewed the record de 20 novo and concluded that Frater understood the waiver and entered his plea knowing that 21 he would not be permitted to collaterally attack his conviction and sentence. Id. at 3-4. 22 The Court accepted Judge Burns’ recommendation and denied Frater’s § 2255 motion. 23 Id. at 4. 24 Frater asserts that shortly after signing the plea agreement, he realized he had made 25 a mistake and thereafter sought to withdraw his guilty plea. Doc. 24 at 5. He claims to 26 have an “absolute right to withdraw for any reason or no reason[.]” Id. The Court held a 27 hearing on Frater’s motion to withdraw his guilty plea and denied the motion, finding that 28 he presented no fair and just reason for requesting the withdrawal as required by Rule 11 of the Federal Rules of Criminal Procedure. CR Doc. 103 at 2-7; see Fed. R. Crim. P. 2) 11¢d)(2)(B). 3 Frater has not shown that the Court committed manifest error in this regard or in accepting Judge Burn’s recommendation, and his unfounded accusations of judicial bias 5 | and misconduct provide no basis for reconsidering the Court’s prior rulings. 6 IT IS ORDERED: 7 1. Frater’s motion to withdraw the notice of appeal (Doc. 28) is granted. The 8 | Clerk is directed to withdraw the notice of appeal (Doc. 26) and notify the Ninth Circuit of the withdrawal. 10 2. Frater’s request for an “independent panel rehearing” of the dismissal of his 11 | § 2255 motion (Doc. 24) is denied. 12 Dated this 16th day of July, 2020. 13 » aud © Cans 15 David G. Campbell 16 Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28