Parker #270777 v. Arizona, State of

Filing 46

ORDER - IT IS ORDERED that the petitioner's Motion: Reconsideration (Doc. 41 ) is denied. IT IS FURTHER ORDERED that the Clerk of the Court shall provide the Ninth Circuit Court of Appeals with a copy of this Order to be filed in the petitioner's appeal, case number 17-17040. (See document for further details). Signed by Senior Judge Paul G Rosenblatt on 11/1/17.(SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Chastabear William Parker,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-16-02404-PHX-PGR
ORDER
(9th Cir. No. 17-17040)

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On September 28, 2017, the Court entered its Order (Doc. 39) and Judgment

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(Doc. 40) dismissing the petitioner’s amended § 2254 habeas petition with prejudice

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on the ground that it was untimely filed under the AEDPA. Pending before the Court

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is the petitioner’s Motion: Reconsideration (Doc. 41), filed October 10, 2017, which

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the Court construes as being filed pursuant to Fed.R.Civ.P. 59(e).

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considered the motion in light of the applicable record, the Court finds that it should

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be denied.

Having

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A Rule 59(e) motion is an “extraordinary remedy, to be used sparingly[.]”

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Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir.2014). The Court may consider the

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merits of a Rule 59(e) motion filed in a habeas action only to the extent that it asks

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the Court to correct manifest errors of law or facts underlying its judgment of

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dismissal. Rishor v. Ferguson, 822 F.3d 482, 492 (9th Cir.2016). The Court enjoys

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“considerable discretion” in resolving such a motion. Id.

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The Court dismissed the petitioner’s habeas action, deemed to have been

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filed on July 7, 2016, as time-barred because the AEDPA’s one-year statute of

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limitations expired on February 7, 2014, and petitioner had not established that the

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limitations period should be extended pursuant to either statutory or equitable tolling.

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Nothing in the petitioner’s Rule 59(e) motion convinces the Court that it clearly erred

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in dismissing this action on that ground because the petitioner’s motion is not

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directed at the timeliness of this action, but rather on the issue of whether the

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petitioner showed sufficient cause and prejudice to excuse the fact that he had

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procedurally defaulted on all of his claims, which is an issue the Court did not reach,

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and still does not reach, in light of the untimeliness of the action. Therefore,

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IT IS ORDERED that the petitioner’s Motion: Reconsideration (Doc. 41) is
denied.

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IT IS FURTHER ORDERED that the Clerk of the Court shall provide the Ninth

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Circuit Court of Appeals with a copy of this Order to be filed in the petitioner’s

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appeal, case number 17-17040.

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DATED this 1st day of November, 2017.

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