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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Apelt, 

Petitioner, 

vs.

Charles L. Ryan, et al., 

Respondents. 

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No. CV-98-0882-PHX-ROS

DEATH PENALTY CASE

ORDER

Pending before the Court is Petitioner’s motion for reconsideration and stay regarding

this Court’s Order determining the procedural status of his sentencing claims. (Doc. 277.)

Petitioner presents two arguments. He first argues that at his initial state post-conviction

relief (“PCR”) proceeding his counsel operated under such a conflict of interest that the

conflict excused counsel’s failure to raise all ineffective assistance of counsel (“IAC”) claims

at sentencing, as was required. (Id. at 7-8.) Next, he challenges the state court’s application

of Ariz. R. Crim. P. 32.2(a)(3) precluding his IAC sentencing claims, contending that the

court’s application frustrated his ability to exercise his federal rights, thus rendering the rule

inadequate to establish procedural default. (Id. at 9-12.)

Generally, motions to reconsider are appropriate only if the Court “(1) is presented

with newly discovered evidence, (2) committed clear error or the initial decision was

manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.

No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A

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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, 925-926 (9th Cir. 1988), nor is it the time to ask the court to “rethink what it has

already thought through,” United States v. Rezzonico, 32 F. Supp.2d 1112, 1116 (D. Ariz.

1998) (quotation omitted).

At issue in Petitioner’s first argument is the United States Supreme Court’s recent

action granting certiorari in Maples v. Thomas, 131 S. Ct. 1718 (U.S. 2011), on the issue of

cause to excuse procedurally defaulted claims in state court. Specifically, the Court agreed

to review cause to excuse default where the petitioner was blameless, the State’s own

conduct contributed to the default, and petitioner’s attorney of record was no longer

functioning as his agent at the time of the default. See Maples v. Allen, No. 10-63, 2010 WL

2727329 (U.S. July 9, 2010) (granting petition for certiorari limited to issue number 2). 

Regarding this argument, however, Petitioner concedes that “[p]reviously, postconviction counsel’s conflict has not been sufficient cause to excuse procedural default.”

(Doc. 277 at 8) (emphasis added.) Petitioner’s appropriately concedes this point; the Court

thoroughly addressed and denied this argument in its earlier Order. See Doc. 132 at 21-22.)

Even though Petitioner states that Maples may change the legal landscape when issued, that

hope is insufficient to constitute an intervening change in controlling law. Therefore, the

Court will not reconsider its resolution of this issue.

Next, regarding the state court’s application of Ariz. R. Crim. P. 32.2(a)(3) precluding

his IAC sentencing claims, Petitioner contends the court’s application “frustrated his right

to effective assistance of post-conviction counsel.” (Doc. 277 at 9.) The Court has already

addressed and denied this argument. (Doc. 132 at 21-24, Doc. 180 at 3-4.) Again, Petitioner

relies upon the possibility that the Supreme Court may take up this issue. (See Doc. 277 at

11-12.) In Cook v. Ryan, No. 10-9742, 2011 WL 1234018 (April 4, 2011) and in Foster v.

Texas, 131 S. Ct. 991 (2011), the Court recently granted stays of execution pending

disposition of petitioners’ request for certiorari on the issue of their right to effective

assistance of post-conviction counsel during initial post-conviction review proceedings.

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However, the hope that the Supreme Court will grant certiorari and conclude that such a right

exists is insufficient to constitute an intervening change in controlling law. Therefore, the

Court will not reconsider its resolution of this issue. 

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s motion for reconsideration and stay of

its Order determining the procedural status of his sentencing claims (Doc. 277) is DENIED.

DATED this 9th day of May, 2011.

Case 2:98-cv-00882-ROS Document 279 Filed 05/10/11 Page 3 of 3