1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Clinton Lee Spencer, ) 

)

Petitioner, )

)

v. ) No. CIV 98-0068 PHX-SRB 

)

Dora B. Schriro, et al., ) DEATH PENALTY CASE

 )

) ORDER

Respondents. )

)

___________________________________ )

Pending before the Court is Petitioner’s Motion to Alter or Amend Judgment filed

pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Dkt. 221.) Previously,

this Court denied Petitioner’s amended petition requesting habeas relief. (Dkt. 215.) 

Petitioner asks the Court to reconsider its resolution of Claim III. The Court declines to

reconsider its Order and denies Petitioner’s Rule 59(e) motion.

DISCUSSION

A motion under Rule 59(e) is in essence a motion for reconsideration. Motions for

reconsideration are disfavored and appropriate only if the court is presented with newly

discovered evidence, if there is an intervening change in controlling law, or if the court

committed clear error. McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (per

curiam); see School Dist. No. 1J, Multnomah County, Or. v. AcandS, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993). A motion for reconsideration is not a forum for the moving party to make new

arguments not raised in its original briefs. Northwest Acceptance Corp. v. Lynnwood

Equipment, Inc., 841 F.2d 918, 925-26 (9th Cir. 1988). Nor is it the time to ask the court to

Case 2:98-cv-00068-SRB Document 222 Filed 01/26/07 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

“rethink what it has already thought through.” United States v. Rezzonico, 32 F.Supp.2d 1112,

1116 (D.Ariz. 1998).

In Claim III of his Amended Petition, Petitioner argued that the state trial court violated

his constitutional rights by failing to instruct the jury, sua sponte, on lesser-included homicide

offenses. Petitioner also argued that trial counsel rendered ineffective assistance of counsel

in failing to seek a lesser-included offense instruction. In his motion for reconsideration,

Petitioner has presented no new evidence or argued an intervening change in the law. Instead,

he merely argues the Court erred in denying this claim and urges the Court to rethink its

decision. For the reasons set forth below, the Court declines to do so.

The U.S. Supreme Court has held that a capital defendant is entitled to an instruction

on a lesser-included offense “if the evidence would permit a jury rationally to find him guilty

of the lesser offense and acquit him of the greater.” Beck v. Alabama, 447 U.S. 625, 635

(1980) (quoting Keeble v. U.S., 412 U.S. 205, 208 (1973)). Such a lesser-included instruction

is required by due process only if warranted by the evidence. Hopper v. Evans, 456 U.S. 605,

611 (1982). 

The Arizona Supreme Court rejected this claim on direct appeal, stating, in pertinent

part:

Spencer claims that the trial court erred by failing to instruct the jury

sua sponte on lesser included offenses of first degree murder. He cites Beck v.

Alabama .....Beck requires that the jury be instructed on lesser included

offenses only when there is some evidence of the commission of a lesser

offense.

Spencer argues that the presence of a cut on his hand supports the

inference that the victim attacked him with a knife and, therefore, the killing

took place during a sudden quarrel or in the heat of passion and only amounts

to manslaughter or second-degree murder. The inference that the victim was

the aggressor in this case is simply too speculative and far-fetched to

countenance in light of the overwhelming evidence that she was under

Spencer’s power for some hours prior to the killing and that the method in

which the killing was accomplished was planned for months before. In

addition, the “evidence” that the victim carried a knife in her car was not

offered at trial but was contained in a pre-sentence report generated months

later. There was simply no evidence presented at trial to support an instruction

on lesser included offenses.

Case 2:98-cv-00068-SRB Document 222 Filed 01/26/07 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

State v. Spencer, 176 Ariz. 36, 41-42, 859 P.2d 146, 151-52 (1993).

This Court concluded that the Arizona Supreme Court’s decision upholding the trial

court’s failure to instruct on lesser-included offenses was neither contrary to, or an

unreasonable application of Beck. (Dkt. 215 at 40.) Petitioner asserts this conclusion was in

error because of an improper reliance upon the “evidence of premeditation presented to

Petitioner’s jury.” (Dkt. 221 at 3.)

Petitioner’s arguments for reconsideration amount to nothing more than the belief the

Court made the wrong decision based on the facts and law. However, the Arizona Supreme

Court’s determinations that ample evidence of premeditation was presented at trial and that

Petitioner’s theory of a sudden struggle was “too speculative and far-fetched to countenance”

were reasonable determinations. Evidence presented at trial established that Petitioner was

acting on a motive for pecuniary gain, that the victim was under his control for some time prior

to the murder and that the method he used to kill her had been contemplated by him months

before. No credible evidence supporting a sudden quarrel or heat of passion theory of killing

was presented. Nothing in Petitioner’s arguments causes the Court to alter its analysis. The

Court declines to “rethink what it has already thought through.” Rezzonico, 32 F.Supp.2d at

1116. 

The Court reiterates its belief that the determination of the Arizona Supreme Court

rejecting this claim was neither contrary to, or an unreasonable determination of the principles

outlined in Beck. See 28 U.S.C. § 2254(d). Nor were the Arizona Supreme Court’s

conclusions based on an unreasonable determination of the facts in light of the evidence

presented at trial. Id. Because the state trial court’s failure to instruct on lesser-included

offenses did not violate Petitioner’s constitutional rights, Petitioner is not entitled to

reconsideration of his claim that counsel was ineffective in failing to request a lesser-included

instruction. See Turner v. Calderon, 281 F.3d 851, 895 (9th Cir. 2002) (Counsel not

ineffective for failing to request factually unsupported jury instructions.)

Accordingly,

Case 2:98-cv-00068-SRB Document 222 Filed 01/26/07 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

IT IS THEREFORE ORDERED that Petitioner’s Motion to Alter or Amend

Judgment (Dkt. 221) is DENIED.

DATED this 26th day of January, 2007.

Case 2:98-cv-00068-SRB Document 222 Filed 01/26/07 Page 4 of 4