Amesquita v. Hickman

Filing 50

ORDER Regarding 49 Objections to Order Denying Motion for Relief, signed by Chief Judge Lawrence J. O'Neill on 2/9/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN JOSE AMESQUITA,

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Petitioner,
v.
ROD HICKMAN, Warden

Case No. 1:05-cv-00055-LJO-MJS (HC)
ORDER REGARDING OBJECTIONS TO
ORDER DENYING MOTION FOR RELIEF
(ECF No. 49)

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On October 4, 2006, his petition was dismissed as

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untimely. (ECF No. 30.) On October 25, 2006, Plaintiff’s request for a certificate of

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appealability was denied. (ECF No. 35.) Petitioner appealed and, on April 2, 2007, the

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Ninth Circuit also denied his request for a certificate of appealability. (ECF No. 42.)

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Nothing further occurred in this case for over ten years. On May 15, 2017,

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Petitioner filed a motion seeking resolution of claims that he states were not resolved by

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the state courts because they were found to be procedurally barred. (ECF No. 44.) He

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filed a substantially similar motion on June 12, 2017, styled as a motion for

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reconsideration pursuant to Federal Rule of Civil Procedure 60(b)(6). In these motions,

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Petitioner claimed that this Court previously erred in declining to stay his petition to allow

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him to exhaust his claims in state court. The motions reflected that Petitioner pursued

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state habeas petitions in 2016 and 2017, and he appeared to be attempting to bring a

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new petition based on those rulings. On June 20, 2017, the undersigned denied the Rule

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60(b)(6) motion, noting that the petition in this case had been dismissed as time-barred,

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and that Petitioner had presented no argument in that regard.
Now before the Court are Petitioner’s July 24, 2017 objections to the order

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denying his Rule 60(b)(6) motion for relief.
I.

Legal Standard

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Plaintiff objects to the Court’s denial of a Rule 60(b)(6) motion.

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law.” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

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“A motion for reconsideration may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised in earlier litigation.” Id.

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion . . . .”

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Rule 60(b) allows the Court to relieve a party from a final judgment or order on

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grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence . . . ; (3) fraud . . . , misrepresentation, or misconduct by an

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opposing party; (4) the judgment is void; (5) the judgment has been satisfied . . . ; it is

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based on an earlier judgment that has been reversed or vacated; or applying it

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prospectively is no longer equitable; or (6) any other reason that justifies relief.” Fed. R.

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Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted). The moving party bears the burden of demonstrating that relief under

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Rule 60(b) is appropriate. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988).

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II.

Disqualification

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Petitioner contends that the undersigned is biased and prejudiced against him. To

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the extent he is requesting disqualification of the undersigned, the request will be

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denied.

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Motions to disqualify or recuse a judge fall under two statutory provisions, 28

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U.S.C. § 144 and 28 U.S.C. § 455. Section 144 provides for recusal where a party files a

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timely and sufficient affidavit averring that the judge before whom the matter is pending

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has a personal bias or prejudice either against the party or in favor of an adverse party,

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and setting forth the facts and reasons for such belief. See 28 U.S.C. § 144. Similarly,

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§ 455 requires a judge to disqualify himself “in any proceeding in which his impartiality

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might reasonably be questioned,” 28 U.S.C. § 455(a), including where the judge “has a

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personal bias or prejudice concerning a party,” 28 U.S.C. § 455(b)(1).

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A judge finding a § 144 motion timely and the affidavits legally sufficient must

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proceed no further and another judge must be assigned to hear the matter. See id.;

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United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not

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legally sufficient, however, the judge at whom the motion is directed may determine the

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matter. Sibla, 624 F.2d at 868 (holding judge challenged under § 144 properly heard and

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denied motion where affidavit not legally sufficient). An affidavit filed pursuant to § 144

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“is not legally sufficient unless it specifically alleges facts that fairly support the

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contention that the judge exhibits bias or prejudice directed toward a party that stems

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from an extrajudicial source.” Id. at 868 (citation omitted).

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The substantive test for personal bias or prejudice is identical under §§ 144 and

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455. See Sibla, 624 F.2d at 867. Specifically, under both statutes recusal is appropriate

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where “a reasonable person with knowledge of all the facts would conclude that the

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judge's impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d

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622, 626 (9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under § 144

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will raise a question concerning recusal under §§ 455(a) and (b)(1) as well. Sibla, 624

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F.2d at 867. Under either statute, the bias must arise from an extrajudicial source and

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cannot be based solely on information gained in the course of the proceedings. Pesnell

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v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citing Liteky v. United States, 510

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U.S. 540, 554-56 (1994). “Judicial rulings alone almost never constitute a valid basis for

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a bias or partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004)

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(quoting Liteky, 510 U.S. at 555.)

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Petitioner’s claim of bias appears to be based solely on the undersigned’s

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adverse ruling against him. These contentions do not raise a question of bias or partiality

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on the part of the undersigned that arises from an extrajudicial source. The allegations

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therefore are insufficient under §§ 144 and 455. There is no basis for disqualification.

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III.

Dispute Regarding Motion to Stay

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Petitioner objects to the following statement in the Court’s prior order: “Although

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Petitioner states that he moved to stay the proceedings, the docket reflects no such

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motion. Petitioner voluntarily dismissed a prior action, stating his intent to exhaust his

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claims in state court. Amesquita v. Adams, No. 1:00-cv-07060-OWW-SMS.” (ECF No. 47

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at 2 n.2.) Petitioner now clarifies that he filed a motion to stay his petition in Amesquita v.

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Adams, Case No. 1:00-cv-07060-OWW-SMS.1 The Magistrate Judge assigned to that

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case noted that Petitioner’s request was far from clear and, in any event, was

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The case has been reassigned and renumbered as No. 1:00-cv-07060-DAD-EPG.

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unsupported by the record then before the Court. (ECF No. 6 in Case No. 1:00-cv-

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07060.) When asked to provide clarification, Petitioner did not reiterate an intent to stay

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the action; instead, he requested dismissal. (ECF No. 7 Case No. 1:00-cv-07060.) The

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action was then dismissed. (ECF No. 9.)

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The Court will not here revisit the propriety of these rulings. Petitioner cannot

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collaterally attack rulings in Case No. 1:00-cv-07060 in this action. The Court cannot

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review the denial of his motion to stay. Petitioner’s remedy is to seek relief in Case No.

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1:00-cv-07060, either through a post-judgment motion or on appeal. The Court notes

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that Petitioner’s objections also have been filed in Case No. 1:00-cv-07060.

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IV.

Conclusion and Order
Petitioner has presented no basis for relief in this action. To the extent his

objections may be construed as a motion for reconsideration, they are DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

February 9, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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