Cascketta v. USA

Filing 23

ORDER denying 21 Motion for Reconsideration; a certificate of appealability is also denied as to the motion for reconsideration. (See attached order for additional information.). Signed by Senior Judge James A. Teilborg on 12/18/2018. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Karl John Cascketta,

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Movant,

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ORDER

v.

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No. CV-16-02042-PHX-JAT (JZB)
CR-09-678-PHX-JAT-2

USA,

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Respondent.

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Pending before the Court is Movant’s motion for reconsideration (Doc. 21)

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(“Motion”) which he filed pro se despite being represented by counsel. The Motion is

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denied because it is procedurally improper; because Movant has counsel he cannot

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simultaneously represent himself pro se. Alternatively, the Motion is denied on the merits

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for the reasons stated in this Court’s Order of October 19, 2018 (Doc. 19) and the Report

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and Recommendation (Doc. 16).1

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To the extent the Motion could be construed as being filed under Federal Rule of

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Civil Procedure 59(e) or 60(b), a certificate of appealability on the Motion will also be

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denied for the reasons stated in the Order at Doc. 19. See United States v. Winkles, 795

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F.3d 1134, 1142 (9th Cir. 2015) (certificate of appealability is required to appeal the denial

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of a Rule 60(b) motion arising out of the denial of a section 2255 motion); Johnson v.

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Montgomery, No. LA CV 13-07189-VBF, 2014 WL 7338824, at *6 (C.D. Cal. Dec. 15,

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Movant’s intention to argue on appeal that controlling Ninth Circuit precedent was
wrongly decided (Doc. 21 at 3-4) does not change this Court’s reason for denying a
certificate of appealability.

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2014) (“United States v. Parada, 555 F. App'x 763, 765 (10th Cir.2014) (holding that

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AEDPA ‘requires a petitioner to obtain a COA before he can appeal the denial of any final

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order in a habeas corpus proceeding, including a motion for reconsideration under Rule

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59(e)’) (emphasis added) (citing United States v. Cobb, 307 F. App'x 143, 144–45 (10th

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Cir.2009) and 28 U.S.C. § 2253(c)(1)(B))).

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IT IS ORDERED that the motion for reconsideration (Doc. 21) is denied; a
certificate of appealability is also denied as to the motion for reconsideration.
Dated this 18th day of December, 2018.

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