U.S. v. Navarro

• Decision Date: 20 July 1997
• Docket Number: No. CR S-94-390 LKK.,CR S-94-390 LKK.
• Citation: 972 F.Supp. 1296
• Parties: UNITED STATES of America, Respondent, v. Anthony NAVARRO, Movant.
• Court: U.S. District Court — Eastern District of California

972 F.Supp. 1296

UNITED STATES of America, Respondent, v. Anthony NAVARRO, Movant.

No. CR S-94-390 LKK.

United States District Court, E.D. California.

July 20, 1997.

COPYRIGHT MATERIAL OMITTED

Nancy Simpson, Assistant U.S. Attorney, Sacramento, CA, for Respondent.

Brenda Grantland, Mill Valley, CA, for Movant.

ORDER

KARLTON, Chief Judge Emeritus.

This matter is once again before the court, this time on the government's motion to reconsider the court's order granting the motion made pursuant to 28 U.S.C. § 2255 and dismissing the underlying indictment. The facts relevant to the order are set forth in the court's published opinion and need not be repeated here. See United States v. Navarro, 959 F.Supp. 1273 (E.D.Cal.1997).

I begin with a discussion of the standards applicable to a motion to reconsider, and then applying those standards either address or decline to consider the substantive issues which the government now tenders. The government's motion to reconsider raises some difficult and troubling issues, resolution of which is far from certain. While the court will reconsider certain of the questions addressed in the government's motion, upon reconsideration, and for the reasons explained below, the court will not grant the government substantive relief.

I. MOTIONS TO RECONSIDER

"Under the `law of the case' doctrine a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997) (citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993)). That is because, while motions to reconsider are directed to the sound discretion of the court, see Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988), considerations of judicial economy weigh heavily in the process. Accordingly, before reconsideration may be granted there must be a change in the controlling law, facts, or other circumstances, the need to correct a clear error, or the need to prevent manifest injustice. Alexander, 106 F.3d at 876 (citing Thomas, 983 F.2d at 155). In implementation of the general constraint on motions for reconsideration, Local Rule Crim. 12-430 requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances [which] were not shown upon such prior motion, or what other grounds exist for the motion." The purpose of the rule is to insure that the standards for reconsideration have been met by the moving party prior to the court's consideration of the merits.

As with motions to alter or amend a judgment made pursuant to Fed.R.Civ.P. 59(a), motions to reconsider are not vehicles permitting the unsuccessful party to "rehash" arguments previously presented. See Costello v. United States Government, 765 F.Supp. 1003, 1009 (C.D.Cal.1991). Nor is a motion to reconsider justified on the basis of new evidence which could have been discovered prior to the court's ruling. 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). Finally, "after thoughts" or "shifting of ground" do not constitute an appropriate basis for reconsideration. Id. These relatively restrictive standards "reflect[] district courts' concern for preserving dwindling resources and promoting judicial efficiency." Costello, 765 F.Supp. at 1009.

II. THE MOTION

The government asserts three grounds for reconsideration. First, that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh'g denied, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989), precludes the granting of defendant's motion. Second, that the court failed to apply United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), to defendant's motion, and finally, that the court misinterpreted the government's position on the relation between 5 U.S.C. § 3372(a) and 28 U.S.C. § 543. I consider each claim seriatim.¹

A. RETROACTIVITY UNDER TEAGUE v. LANE

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh'g denied, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989), a plurality of the High Court held that "new constitutional rules of criminal procedure" cannot be applied retroactively in a habeas proceeding unless either (1) the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) its absence would "undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction." Id. at 311, 315, 109 S.Ct. at 1075, 1078.² The government, relying on Teague, argues that movant cannot raise on collateral attack the Special Assistant United States Attorney's (SAUSA) lack of authority to represent the United States in the underlying prosecution.

Although Teague involved a habeas petition under § 2254, the doctrine applies to § 2255 habeas petitions. See, e.g., United States v. Judge, 944 F.2d 523, 524-25 (9th Cir.1991), cert. denied, 504 U.S. 927, 112 S.Ct. 1988, 118 L.Ed.2d 585 (1992). Nonetheless, this court concludes that the government's position cannot be sustained.

i. WAIVER

When the government timely raises Teague, its limitation on collateral attack is a threshold matter which must be resolved before addressing the merits. See Goeke v. Branch, 514 U.S. 115, 116-18, 115 S.Ct. 1275, 1276, 131 L.Ed.2d 152, 156-57 (1995) (citations omitted). Teague, however, does not implicate the jurisdiction of the court and, thus, Teague can be waived. Id.; Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 952-53, 127 L.Ed.2d 236 (1994). As a result, the court "may, but need not, decline to apply Teague if the State does not argue it." Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 788-89, 127 L.Ed.2d 47 (1994) (citing Godinez v. Moran, 509 U.S. 389, 397 n. 8, 113 S.Ct. 2680, 2685 n. 8, 125 L.Ed.2d 321 (1993), reh'g denied, 510 U.S. 1215, 114 S.Ct. 1341, 127 L.Ed.2d 688 (1994); see also Parke v. Raley, 506 U.S. 20, 26, 113 S.Ct. 517, 521-22, 121 L.Ed.2d 391 (1992); Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718-19, 111 L.Ed.2d 30 (1990) (cited in Godinez, supra) In the matter at bar, the government did not raise the retroactivity argument during the court's consideration of the habeas petition. As I now explain, given the restrictive standards applicable to motions to reconsider, that failure works a waiver of the Teague defense.³

While the court has discretion to consider a waived Teague defense, the standards applicable to a motion for reconsideration articulated above counsel restraint in the entertaining of arguments which the government could have raised earlier, unless the refusal to reconsider would result in clear legal error or manifest injustice. The government has not sought to justify its failure to raise the Teague issue earlier, and there is no apparent reason why the government could not have done so.⁴ Given that "harsh rules for waiver of constitutional claims" are often applied to defendants, see Caspari, 510 U.S. at 396, 114 S.Ct. at 956-57 (Stevens, J. dissenting) (citations omitted), the government cannot claim manifest injustice resulting from the court's decision not to relieve it from its procedural default. In light of the fact that Teague may be viewed as waived if not raised, and the Circuit's and Local Rules' relatively strict standards for reconsideration, the government's attempt to invoke a retroactivity argument at this point in the proceeding cannot be countenanced.⁵

ii. THE INAPPLICABILITY OF TEAGUE

Even if the government had not waived its retroactivity defense, it appears that Teague would be inapplicable to the matter at bar. By its terms, Teague applies to "new constitutional rules of criminal procedure." Teague, 489 U.S. at 316, 109 S.Ct. at 1078. The Ninth Circuit has specifically distinguished between the procedural rules governed by Teague and "substantive, non-constitutional decisions concerning the reach of a federal statute." United States v. McClelland, 941 F.2d 999, 1001 (9th Cir.1991) (new decision adding an essential element to a criminal offense is fully retroactive in a § 2255 proceeding). Decisions which explicate substantive elements of a crime, or which speak to the authority of the court to convict a criminal defendant, do not fall within the scope of the Teague doctrine. Id. (citing Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305-06, 41 L.Ed.2d 109 (1974); see also United States v. Dashney, 52 F.3d 298, 299 (10th Cir.1995); United States v. Barnhardt, 93 F.3d 706 (10th Cir. 1996). Indeed, ii: is well established that holdings concerning the subject matter jurisdiction of the court in criminal cases must have complete retroactive effect. United States v. Johnson, 457 U.S. 537, 550, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982) (Marshall, J., dissenting) (citations omitted).

Citing to the Ninth Circuit opinion in Judge and various district court cases dealing with § 2255 petitions following upon Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the government argues that courts have extended Teague to questions of statutory interpretation.⁶ In Gomez, the High Court held that jury selection by a magistrate without the defendant's consent violates the Federal Magistrates Act, 28 U.S.C. § 636(b)(3). Later in Judge, the Ninth Circuit held that Gomez did not fall into the Teague exception for procedures "implicit in the concept of ordered liberty." Judge, 944 F.2d at 525.⁷

Even assuming that Judge stands for the proposition that Teague applies to a new interpretation of a statute as well as...