ORDER DENYING PETITIONER'S MOTION FOR LEAVE TO FILE A MOTION TO RECONSIDER

Re: Dkt. No. 427

JEREMY D. FOGEL, District Judge.

BACKGROUND

On December 19, 2017, this Court issued an Order denying Claims 3, 7, and 11 of the instant petition. See Dkt. No. 423. The Court made its decision after holding a three-day evidentiary hearing featuring lengthy testimony from several expert witnesses and considering the parties' extensive pleadings, filings, and post-hearing briefs. See Dkt. Nos. 388-390, 401, 403, & 408. On March 7, 2018, Petitioner filed a motion for leave to file a motion to reconsider the Order. See Dkt. No. 427.

DISCUSSION

a. Standard of Review

Pursuant to Civil Local Rule 7-9(b), a party moving for leave to file a motion to reconsider is required to show:

See Civil L.R. 7-9(b).

As discussed below, Petitioner has not shown that any of these circumstances exist. Even if he had, the Court would reject Petitioner's arguments on the merits.

b. Analysis

Petitioner argues the Court should grant his request for leave to file a motion to reconsider because there was a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order." See Civil L.R. 7-9(b)(3). Specifically, Petitioner argues this Court applied the wrong standard of review to Claim 17, erred in ruling on Claims 3, 11, and 17 in the "absence of merits briefing," and erred in denying the claims without "receiving lay witness testimony." See Dkt. No. 427 at 2, 5, & 8.

1. Claim 17 Standard of Review

Petitioner argues that the Court "improperly applied AEDPA's exacting standard [of review] to the merits of Claim 17," rather than considering the claims de novo. Petitioner contends that AEDPA review was inappropriate because, as he established a prima facie case for relief, the California Supreme Court's decision to deny the underlying claim on the merits was "objectively unreasonable" for purposes of 28 U.S.C. § 2254(d). See Dkt. No. 427 at 2-3.

Petitioner made a similar argument in his post-hearing brief, see Dkt. No. 401 at 33-34, and the Court addressed that argument directly in its Order denying Claims 3, 11, and 17. The Court did not decide whether Petitioner was entitled to de novo review, but it ruled as a threshold matter that "Petitioner's claims would be unmeritorious even if this Court were to consider Petitioner's `new' evidence de novo," in part because the Court found that Petitioner's "new" evidence was "cumulative in nature" to that which was provided to the state court in support of the claims at issue. See Dkt. No. 423 at 45. Additionally, while it concluded its analysis of Petitioner's various arguments under Claim 17 by noting that the California Supreme Court reasonably could have rejected those arguments, this Court nonetheless independently evaluated each of Petitioner's arguments regarding trial counsel's alleged ineffectiveness on their own merits. See, e.g., Dkt. No. 423. at 74 ("To the extent that Petitioner argues . . . trial counsel's failure to present mental health testimony was not a strategy choice[,] . . . this Court again finds and concludes that the record shows otherwise"); id. at 76 ("Petitioner already had presented mental health evidence during the guilt phase . . . [u]nder these circumstances, trial counsel reasonably could have concluded that Dr. Garton's testimony . . . would not have been helpful to Petitioner at the penalty phase"); id. at 78 ("Counsel reasonably could have made a strategic decision not to open the door for the prosecution to introduce evidence to rebut any `future dangerousness' evidence presented by the defense. . ."); id. ("[F]or the reasons already discussed above, Petitioner's contention that the jury was unable to consider mitigating evidence, including mental health evidence, is meritless").

Accordingly, Petitioner is not entitled to reconsideration on this ground.

2. Merits Briefing

Petitioner next argues that the Court erred in ruling on his claims in the "absence of merits briefing." See Dkt. No. 427 at 5. According to Petitioner, "[i]n cases in which the petition is not dismissed summarily, "it can be assumed that the court will await a full round of briefing (including a reply brief) before deciding the case." See id. at 7 (citations omitted).

Petitioner cites an Eleventh Circuit case in support of his argument that adversarial merits briefing is an indispensable part of habeas case resolution. See McNabb v. Comm'r Alabama Dep't of Corr., 727 F.3d 1334, 1339-1340 (11th Cir. 2013). McNabb is not binding on this Court and, in any event, it does not support Petitioner's argument. In McNabb, a district court dismissed a petitioner's habeas petition without offering the parties an opportunity to file merits briefs despite stating in a scheduling order that it would rule on procedural default and allow the parties to brief the remaining claims. While the Eleventh Circuit noted its disapproval of the district court's decision to rule on the claims without allowing any briefing, it ultimately held that the district court's actions had not amounted to a due process violation, noting that the habeas local rules did not provide for merits briefing and that petitioners "ha[ve] no right to briefing." Id. at 1340.

Even if McNabb supported Petitioner's contention that he was entitled to separate merits briefing, however, it would be easily distinguishable. First, unlike the petitioner in McNabb, Petitioner repeatedly "request[ed] that the Court rule on [C]laims 3, 11, and 17," and did not request leave to file any additional briefing at that time. See Dkt. No. 422. Second, Petitioner had a full opportunity to brief how the "new" evidence presented at the evidentiary hearing affected Claims 3, 11, and 17. Indeed, the Court asked the parties to brief whether they believed any new, non-cumulative evidence was presented, whether such evidence was admissible and for what purpose, and, if so, what standard of review must be applied to the evidence for purposes of the Court's determination of each witness' credibility. See Dkt. No. 381 at 86-88. Accordingly, the principal purpose of the post-hearing briefs was to explain to the Court why the "new" evidence entitled Petitioner to relief, effectively allowing him to brief the merits of his claims.

As Petitioner was able to submit briefing on the merits of his claims and does not, beyond asserting he was unable to "fully" brief his claims, identify any material facts or dispositive legal arguments that were not considered by the Court, Petitioner is not entitled to reconsideration on this ground.

3. Lay Witness Testimony

Finally, Petitioner argues that the Court erred when it denied Petitioner's claims without first hearing the live testimony of forty-six lay witnesses whose declarations were relied upon by Petitioner's expert witnesses. See Dkt. No. 427 at 9. The Court summarized this lay witness testimony its Order denying Claims 3, 11, and 17. See Dkt. No. 423 at 39-41.

In ruling on Claims 3, 11, and 17, the Court expressly "consider[ed] the evidence produced by the parties during, and in preparation for, the 2014 evidentiary hearing," including the forty-six lay declarations. See Dkt. No. 423 at 45 & 39-41. The Court did not, either explicitly or implicitly, make any adverse credibility determinations as to the lay witnesses' declarations. Rather, the Court determined that the evidence presented in the lay witness declarations, even if taken as true, was cumulative to evidence already in the record as to Claims 3, 11, and 17, and therefore did not alter the Court's determination that Petitioner was not entitled to relief on those claims. See id. at 45 & 50-51. An evidentiary hearing with respect to the lay witness testimony thus was unnecessary.1

CONCLUSION

Good cause therefor appearing, the motion for leave to file a motion for reconsideration is DENIED. The parties should continue adhering to the briefing schedule set out in the Court's January 26, 2018 Order, see Docket No. 425, for disposition of Petitioner's remaining claims.

IT IS SO ORDERED.

This order disposes of Dkt. No. 427.