Ziegenfuss v. Mackey ( 2021 )

1 WO MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Norman Ziegenfuss, Jr., No. CV 20-02059-PHX-JJT (JZB) 10 Petitioner, 11 v. ORDER 12 Anthony Mackey, et al., 13 Respondents. 14 15 On September 9, 2020, Petitioner James Norman Ziegenfuss, Jr., who is confined 16 in CoreCivic’s Red Rock Correctional Center, filed a pro se Petition under 28 U.S.C. 17 § 2254 and a Motion to Proceed In Forma Pauperis in the Ninth Circuit Court of Appeals. 18 Ziegenfuss v. Ariz. Court of Appeals, No. 20-72901 (9th Cir.). In an October 21, 2020 19 Order, the Ninth Circuit Court of Appeals transferred the Petition and Motion to this Court. 20 In a November 2, 2020 Order, the Court denied Petitioner’s Motion to Proceed In Forma 21 Pauperis and dismissed the Petition with leave to amend, giving Petitioner 30 days to file 22 an amended § 2254 petition and either pay the $5.00 filing fee or file a complete 23 Application to Proceed In Forma Pauperis using the court-approved form.1 24 On November 5, 2020, Petitioner filed a document entitled “Habeas Petition,” 25 which the Court construed, in a November 17, 2021 Order, as a Motion for 26 Reconsideration, Clarification, and Recusal. The Court granted the Motion in part insofar 27 28 1 Petitioner’s appeal from this order was dismissed by the Ninth Circuit for lack of jurisdiction on December 9, 2020. See Ziegenfuss v. Mackey, No. 20-17279, Doc. 3. 1 as it provided clarification of the November 2 Order. In all other respects, the Motion was 2 denied. 3 On November 23 and 30, 2020, Petitioner filed a Motion for Extension of Time and 4 a “Notice of Correction of the Record.” In a December 11, 2020 Order, the Court granted 5 the Motion for Extension of Time and denied the Notice, which was construed as a Motion 6 for Reconsideration of the Court’s November 17 Order. 7 On January 8, 2021, Petitioner filed another Motion for Extension of Time. In a 8 January 15, 2021 Order the Court granted the Motion for Extension of Time to the extent 9 Petitioner was given 30 days to file an amended petition and either pay the filing fee or file 10 a complete Application to Proceed In Forma Pauperis. 11 On January 29, 2021, Petitioner paid the $5.00 filing fee. On February 5, 2021, he 12 filed a Motion to Stay. In a February 11, 2021 Order, the Court denied the Motion to Stay 13 without prejudice and gave Petitioner 30 days to file an amended Petition. 14 On February 16, 2021, Petitioner submitted a Letter addressed to the Clerk of Court 15 (Doc. 30). On March 11, 2021, he filed a Motion for Enlargement of Time and Motion to 16 Stay (Doc. 31). 17 I. Letter 18 In his Letter, Petitioner asks the Clerk of Court to file multiple attached documents, 19 each of which is a completed copy of a form titled “Violation Warning Denial of Rights 20 Under Color of Law.” Each copy of the form is addressed to a different individual, many 21 of whom appear to be state officers. It is not clear what bearing these documents have on 22 this case, and Petitioner has offered no explanation to support their introduction into the 23 record. The Court will therefore deny the Letter and strike the attachments from the record. 24 II. Motion for Enlargement of Time and Motion to Stay 25 In his Motion for Enlargement of Time and Motion to Stay, Petitioner asks the Court 26 to stay this case until 30 days after the Arizona Supreme Court has rendered a decision on 27 his pending petition for review. See State v. Ziegenfuss, CR-20-0451-PR (Ariz.). This 28 Court has already denied Petitioner’s request for a stay. See Doc. 29 at 3 (noting that the 1 Court is unable to determine the propriety of a stay in the absence of a pending petition). 2 Accordingly, the Court will construe Petitioner’s Motion as a Motion for Reconsideration 3 of the February 11, 2021 Order. 4 Motions for reconsideration should be granted only in rare circumstances. 5 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 6 reconsideration is appropriate where the district court “(1) is presented with newly 7 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 8 or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah 9 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 10 used for the purpose of asking a court “‘to rethink what the court had already thought 11 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 12 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion 13 for reconsideration “may not be used to raise arguments or present evidence for the first 14 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 15 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nor may a motion for 16 reconsideration repeat any argument previously made in support of or in opposition to a 17 motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. 18 Ariz. 2003). Mere disagreement with a previous order is an insufficient basis for 19 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 20 1988). 21 The Court has reviewed the February 5, 2021 Motion to Stay, the February 11, 2021 22 Order, and the pending Motion for Reconsideration. The Court finds no basis to reconsider 23 its decision. Accordingly, Plaintiff’s Motion for Reconsideration will be denied. 24 III. Leave to Amend 25 The original Petition was dismissed more than four months ago. Petitioner has been 26 given ample opportunity to comply with the Court’s instruction to file an amended petition 27 yet has persistently failed to do so—despite having been warned repeatedly that the 28 consequence for a failure to comply is dismissal. Petitioner will be given one final opportunity to file an amended petition in accordance with the November 2, 2020 Order 2| and this Order. If he fails to do so within 30 days, this case will be dismissed. 3| IV. Warnings 4 A. Address Changes 5 Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 7 | for other relief with a notice of change of address. Failure to comply may result in dismissal 8 | of this action. 9 B. Possible Dismissal 10 If Petitioner fails to timely comply with every provision of this Order, including 11 | these warnings, the Court may dismiss this action without further notice. See Ferdik v. 12| Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 13 | for failure to comply with any order of the Court). 14| ITIS ORDERED: 15 (1) Petitioner’s Letter (Doc. 30) is denied. The Clerk of Court must strike the 16 | documents attached to Petitioner’s Letter. 17 (2) Petitioner’s Motion for Enlargement of Time and Motion to Stay (Doc. 31), 18 | construed as a Motion for Reconsideration, is denied. 19 (3) Within 30 days of the date this Order 1s filed, Petitioner must file an amended 20 | petition. 21 (4) If Petitioner fails to file an amended petition within 30 days, the Clerk of 22 | Court must enter a judgment of dismissal of this action without prejudice and without 23 | further notice to Petitioner and must deny as moot any pending unrelated motions. 24 Dated this 19th day of March, 2021. 25 A □ 5 26 7 _ James A. Teil Org Senior United States District Judge 28