1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 BENNETT GRIMES, Case No. 2:19-cv-00663-GMN-EJY

6 Petitioner, v. ORDER 7 BRIAN WILLIAMS, et al., 8 Respondents. 9 10 Petitioner Bennett Grimes filed a petition for writ of habeas corpus under

11 (ECF No. 7 (“petition”)). The Court issued an order denying the petition on the merits (ECF No. 12 38) and entered judgment (ECF No. 39). Grimes timely filed a notice of appeal (ECF No. 41), a 13 motion for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure (ECF No. 42 14 (“motion”)) and requested a certificate of appealability (ECF Nos. 42 and 43). The Ninth Circuit 15 Court of Appeals stayed the appeal until this Court decides the motion for reconsideration. (ECF 16 No. 45.) Grimes thereafter filed a motion for release under Fed. R. App. P. 23(c) (ECF No. 49), 17 for an extension of time to file a reply in support of the motion for reconsideration (ECF No. 51) 18 and for copies of all briefs and motions filed in this action (ECF No. 54). For the reasons discussed 19 below, the Court will grant the motion for extension of time to file a reply in support of the motion 20 for reconsideration (ECF No. 51) and deny the motions for reconsideration (ECF No. 42), 21 certificate of appealability (ECF Nos. 42 and 43), release under Fed. R. App. P. 23(c) (ECF No. 22 49), and for copies of all briefs and motions filed in this action (ECF No. 54). As a one-time 23 courtesy to Grimes, however, the Court will instruct the Clerk of the Court to send him a copy of 24 the docket for this action. 25 I. MOTION FOR RECONSIDERATION 26 Grimes raises 21 points for reconsideration of the Court’s order denying the petition. (ECF 27 No. 42.) Respondents oppose the motion contending Grimes failed to demonstrate newly 28 discovered evidence, clear error or manifest injustice, or an intervening change in the controlling 1 law to justify reconsideration. (ECF No. 47 at 5–6.) The Court agrees that Grimes has failed to 2 present a viable basis for reconsideration of the order denying the petition. 3 A district court “possesses the inherent procedural power to reconsider, rescind, or modify” 4 an order for sufficient cause. City of Los Angeles v. Santa Monica Baykeeper,

, 888 5 (9th Cir. 2001). “A Rule 59(e) motion is an ‘an extraordinary remedy, to be used sparingly and in 6 the interest of finality and conservation of judicial resources’.” Wood v. Ryan,

, 1121 7 (9th Cir. 2014) (quoting Kona Enterprises, Inc. v. Estate of Bishop,

, 890 (9th Cir. 8 2000)). “A district court may grant a Rule 59(e) motion if it is presented with newly discovered 9 evidence, committed clear error, or if there is an intervening change in the controlling law.” Wood, 10

(citations and internal quotation marks omitted) (emphasis in original); see also 11 LR 59-1(a). “But ‘[a] motion for reconsideration is not an avenue to re-litigate the same issues and 12 arguments upon which the court already has ruled’.” United States v. Kauwe,

, 13 945 (D. Nev. 2020) (quoting Brown v. Kinross Gold, U.S.A.,

(D. Nev. 14 2005) (citation omitted)). And “[a] motion for reconsideration ‘may not be used to raise arguments 15 or present evidence for the first time when they could reasonably have been raised earlier in the 16 litigation’.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

(9th 17 Cir. 2009) (quoting Kona Enters., Inc. v. Estate of Bishop,

, 890 (9th Cir. 2000)). 18 In points 1–3 of the motion, Grimes requests reconsideration of factual findings made by 19 the Nevada Supreme Court and the characterization of the facts contained in the state court record 20 as set forth in the order denying the petition.1 (ECF Nos. 38 at 2; 42 at 2.) He claims the testimony 21 of the victim and an eyewitness police officer that Grimes had a knife in his hand was contradicted 22 by the DNA results, which excluded him as contributor to blood DNA found on the knife. (Id.). 23 He further claims that the testimony that he was concealed behind stairs prior to entering his wife’s 24 apartment was uncorroborated (Id.) Grimes fails to point to any newly discovered evidence, 25 intervening change in the controlling law, or demonstrate the Court clearly erred in its deference 26

27 1 Grimes’s motion does not indicate to which document his list of points for reconsideration refer, however, his reply in in support of the motion for reconsideration (ECF No. 53 at 26) states his page and line citations correspond 28 to the Court’s order denying the petition on the merits. 1 to the factual findings of the Nevada Supreme Court, or in its characterization of the testimony in 2 the state court record. (Id.) 3 In Points 4–10, Grimes seeks reconsideration of Ground 4, which alleged appellate counsel 4 was ineffective in failing to challenge the denial of a motion to dismiss due to the State’s failure 5 to test the knife for Grimes’s fingerprints and blood. (ECF No. 42 at 2–3.) Grimes claims the State 6 was obligated to test the knife for his fingerprints and blood. (Id.) Grimes fails to show an 7 intervening change in controlling law that required the State to conduct such tests, newly 8 discovered evidence showing his fingerprints and blood were not on the knife, or that the Court 9 clearly erred in its consideration of Ground 4.2 10 In points 11–16, Grimes seeks reconsideration of Ground 7 because he disagrees that the 11 state district court’s failure to notify counsel and respond to the juror’s note inquiring about the 12 timing for the formulation of specific intent to support a burglary conviction, was harmless error. 13 (ECF Nos. 38 at 9–12; 42 at 3–4.) He claims the jurors admitted they believed he did not commit 14 burglary, but he offers no new evidence supporting that claim. He also offers no intervening 15 controlling law affecting the analysis of Ground 7 and nothing to suggest the Court clearly erred 16 in its deference to the Nevada Supreme Court’s determination that the state district court’s failure 17 to notify the defense about the note and respond to the jury’s note constitutes harmless error. 18 Points 17–20 concern Ground 8, in which Grimes alleged the State failed to present 19 sufficient evidence to sustain the burglary conviction. (ECF No. 42 at 4–5.) Grimes asks the Court 20 to reconsider because, (1) the victim’s mother did not see him and only heard her daughter scream; 21 (2) the jurors admitted they were mistaken about criminal intent; (3) there was no evidence he was 22 “lurking”; and (4) the overwhelming evidence refutes his intent to harm. (Id; see also ECF No. 38 23 at 12.) Grimes fails to point to any newly discovered evidence, intervening change in the 24 controlling law, or demonstrate that the Court clearly erred in its deference to the factual findings 25 26

27 2 The victim, her mother, and an eyewitness police officer testified they saw Grimes stab the victim and a medical doctor testified the victim was stabbed 21 times. (Ex. 41 and ECF No. 20-1 at 26–27, 84–86, 121, 149, 174– 28 75; ECF No. 38 at 1–2.) 1 of the Nevada Supreme Court, or in its assessment and characterization of the facts in the state 2 court record. (Id.) 3 Finally, Grimes requests reconsideration in point 21 for Ground 2, in which Grimes alleged 4 trial and appellate counsel were ineffective in failing to challenge the battery conviction as 5 redundant due to the conviction for attempted murder. (ECF No. 42 at 5.) He requests 6 reconsideration claiming the habeas court must apply the constitutional standards that prevailed at 7 the time the original proceedings took place. (Id.) (citing Teague v. Lane,

, 301 8 (1989)); see also ECF No. 38 at 13–20. As explained in the Court’s order, at the time of Grimes’s 9 convictions, there existed favorable and unfavorable Nevada caselaw on the issue whether a 10 battery conviction is redundant where a defendant is convicted of attempted murder for the same 11 conduct. (ECF No. 38 at 13–20.) The Nevada Supreme Court’s unfavorable resolution of that 12 conflicting case law between the time Grimes was convicted and the time of his sentencing did not 13 result in a new rule for purposes of Teague. See Teague,

(A case announces a new 14 rule “if the result was not dictated by precedent existing at the time the defendant’s conviction 15 became final.”) (emphasis in original); see also Chaidez v. United States,

(2013) 16 (noting “a holding is not so dictated . . . unless it would have been ‘apparent to all reasonable 17 jurists.’”) (citation omitted); Jones v. Davis,

(9th Cir. 2015) (noting a court must 18 ask “whether a state court considering the defendant’s claim at the time his conviction became 19 final would have felt compelled by existing precedent to conclude that the rule he seeks was 20 required by the Constitution.”) (citations and brackets omitted). Grimes fails to show newly 21 discovered evidence, an intervening change in the controlling law, or that this Court clearly erred 22 in its consideration of Ground 2. 23 For the foregoing reasons, Grimes has failed to present any basis for reconsideration of the 24 Court’s order dismissing the petition.3 25 /// 26 3 In his reply in support of his motion (ECF No. 53), Grimes repeats arguments for the same claims he made 27 in his petition and attempts to argue new constitutional claims under headings entitled “newly discovered evidence,” “clear error” and an “intervening change in controlling law.” As discussed, such contentions fail to present an 28 appropriate basis for reconsideration. 1 II. OTHER MOTIONS 2 Grimes requests a certificate of appealability in his motion (ECF No. 42 at 1) and in a 3 separately filed motion for certificate of appealability (ECF No. 43). The motions for certificate of 4 appealability will be denied as jurists of reason would not find the Court’s denial of the petition 5 debatable or wrong. 6 Grimes filed a motion of mercy requesting release under Fed. R. App. P. 23(c) and the 7 Respondents filed an opposition (ECF No. 50). The motion will be denied because a motion under 8 Fed. R. App. P. 23(c) is inapplicable to this habeas proceeding. 9 Grimes filed a motion for extension of time to file a reply in support of the motion (ECF 10 No. 51) and the State filed a non-opposition to that motion (ECF No. 52). The motion for extension 11 of time (ECF No. 51) will be granted and the reply in support of the motion for reconsideration 12 (ECF No. 53) is deemed timely filed. 13 Finally, Grimes filed a motion for copies of all briefs and motions filed in the case (ECF 14 No. 54) and Respondents filed a non-opposition (ECF No. 55). Generally, an inmate has no 15 constitutional right to free photocopying or to obtain court documents without payment. Johnson 16 v. Moore,

(9th Cir. 1991). Federal courts do not allow prisoners or any other 17 litigants to accrue copy fees; rather, payment for copy fees is required at the time a request is 18 made. LR IC 1-1(i)(5) (paper copies of filed documents may be obtained from the clerk’s office 19 after payment of copying fees). Nothing in federal law, the Federal Rules of Civil Procedure, the 20 Local Rules of Practice, or established case law, authorizes federal courts to waive or finance copy 21 fees in habeas cases. LSR 1-6 (stating that in forma pauperis status does not waive a party’s 22 “responsibility to pay the expenses of litigation that are not covered by

,” which 23 does not provide for copies). As such, payment is required for all copies of documents contained 24 in the Court’s docket and I will deny Grimes’s motion (ECF No. 54). However, as a one-time 25 /// 26 /// 27 /// 28 /// 1 courtesy to Grimes, I will instruct the Clerk of the Court to send to Grimes one copy of the docket 2 in this action. 3 IT IS THEREFORE ORDERED: 4 1. The motion for reconsideration under Rule 59(e) (ECF No. 42) DENIED with 5 prejudice. 6 2. A certificate of appealability is denied as jurists of reason would not find the Court’s 7 denial of the motion for reconsideration debatable or wrong. 8 3. The motions for a certificate of appealability (ECF Nos. 42 and 43) are DENIED as 9 jurists of reason would not find the Court’s denial of the petition debatable or wrong. 10 4. The motion for release under Fed. R. App. P. 23(c) (ECF No. 49) is DENIED. 11 5. The motion for extension of time to file the reply in support of the motion for 12 reconsideration (ECF No. 51) is GRANTED. The reply in support of the motion for 13 reconsideration (ECF No. 53) is deemed timely filed. 14 6. The motion for copies (ECF No. 54) is DENIED. 15 7. As a one-time courtesy, the Clerk of the Court is directed to send Grimes a copy of the 16 docket in this action.

17 DATED: October 17, 2022

18 ________________________________ 19 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28