Favela-Astorga v. USA

Filing 9

ORDERED: Petitioner's Motion for Leave for Out-of-Time Reply (Doc. 8 ) is denied. The Court's Order dated October 4, 2024, remains in effect. The deadline to file a motion for reconsideration under Rule 59(e) is extended to November 22, 2024. Signed by Chief Judge Jennifer G Zipps on 10/25/2024. (ARC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Rosario Favela-Astorga,

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Petitioner,

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v.

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United States of America,

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Respondent.

No. CV-24-00140-TUC-JGZ
ORDER

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Pending before the Court is Petitioner’s Motion for Leave (Motion) to file an out-

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of-time reply brief. (Doc. 8.) On March 11, 2024, Petitioner filed a Motion to Vacate, Set

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Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255

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(Petition). (Doc. 1.) On June 7, 2024, Senior District Judge David Bury1 ordered the Clerk

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of Court to serve the Petition on the United States Attorney for the District of Arizona.

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(Doc. 3.) On August 2, 2024, the government filed a Response. (Doc. 4.) The Court did not

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receive a reply brief from Petitioner, and on October 4, 2024, the Court issued an order

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denying the Petition. (Doc. 6.) On October 7, 2024, the Court received Petitioner’s pending

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Motion. In the Motion, Petitioner asserts that he did not receive the government’s Response

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until September 17, 2024 and that the copy of the document he received was missing three

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pages, which prevented him from “an opportunity to reply to his § 2255 issues.” (Doc. 8 at

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1.) Petitioner requests a complete copy of the government’s Response and a 30-day

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extension to file his reply brief. (Id.) The Court will deny the Motion.

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On September 10, 2024, the Clerk of the Court reassigned CR 11-150 TUC DCB and CV
24-140 TUC DCB to this Court.

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Under 28 U.S.C. § 2255, no due process violation occurs where a movant is not

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afforded the opportunity to file a reply. Sarsak v. United States, 2011 WL 13327342 (C.D.

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Cal. Apr. 13, 2011); see also United States v. Schmutzler, 2017 WL 4648146 (M.D. Pa.

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Oct. 17, 2017) (“a multitude of courts . . . have held that a § 2255 movant has no absolute

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right to file a reply brief and that it is entirely within a court’s discretion to decide whether

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to permit a reply brief”) (collecting cases). Here, the record clearly supported the Court’s

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order denying Petitioner’s ineffective assistance of counsel claims on the merits, which the

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Court considered even though Petitioner knowingly waived his right to collaterally attack

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his sentence under § 2255. The Court finds that reopening the case to allow Petitioner to

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file a reply is neither required by law, nor in the interests of justice. Therefore, Petitioner’s

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Motion will be denied.

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However, Petitioner may file a motion for reconsideration under Rules 59(e) and

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60(b) of the Federal Rules of Civil Procedure and in accordance with LRCiv 7.2(g). The

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Court provides the standards governing motions for reconsideration to assist Petitioner in

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deciding whether to file such a motion. Under LRCiv 7.2(g), the Court will ordinarily deny

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motions for reconsideration “absent a showing of manifest error or a showing of new facts

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or legal authority that could not have been brought to its attention earlier with reasonable

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diligence.” LRCiv 7.2(g). A motion for reconsideration must also “point out with

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specificity the matters that the movant believes were overlooked or misapprehended by the

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Court.” Id.

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Under Rule 59 of the Federal Rules of Civil Procedure, a party may file a motion to

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alter or amend a judgment no later than 28 days after the entry of judgment. However,

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because 21 days have already passed since the entry of judgment, the Court will grant

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Petitioner 28 days from the date of this order in which to file a motion under Rule 59. Like

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the standard under LRCiv 7.2(g), reconsideration under Rule 59(e) is appropriate if the

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Court committed clear error or the initial decision was manifestly unjust, or if there is newly

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discovered evidence or an intervening change in controlling law. Sch. Dist. No. 1J,

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Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Under Rule 60(b) of the Federal Rules of Civil Procedure, a party may file a motion

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for relief from judgment within a reasonable time, but no more than a year if seeking relief

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under subsections (1), (2), and (3). Rule 60(b) provides six grounds for relief: (1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with

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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,

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or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been

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satisfied, released, or discharged; it is based on an earlier judgment that has been reversed

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or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that

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justifies relief.

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IT IS ORDERED:

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1.

Petitioner’s Motion for Leave for Out-of-Time Reply (Doc. 8) is denied.

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The Court’s Order dated October 4, 2024, remains in effect.

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3.

The deadline to file a motion for reconsideration under Rule 59(e) is extended

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to November 22, 2024.
Dated this 25th day of October, 2024.

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