Queen v. Rios

Filing 26

ORDER DENYING 24 Petitioner's Motion for Reconsideration signed by Magistrate Judge Sheila K. Oberto on 8/15/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 NICHOLAS J. QUEEN,

Case No. 1:09-cv-01224-SKO-HC

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ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION (DOC. 24)

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Petitioner,
v.

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H. A. RIOS, JR.,
Respondent.

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Petitioner is a federal prisoner who proceeded pro se and in
forma pauperis with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 that was dismissed with prejudice by this Court.
Pursuant to 28 U.S.C. 636(c)(1), the parties consented to the
jurisdiction of the United States Magistrate Judge to conduct all
further proceedings in the case, including the entry of final
judgment.

Pending before the Court is a motion for reconsideration

filed on August 11, 2014, and a notice filed thereafter asking the
Court to construe the motion as a new habeas petition.
I.

Background

In the petition, Petitioner challenged the manner in which his
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1 sentence was executed, which had involved assignment to a federal
2 prison, transfer to a state institution to serve some state time,
3 and then transfer to federal prison to serve his federal sentence.
4 Petitioner challenged the lawfulness of the piecemeal nature of his
5 sentence.

The petition was dismissed as a successive petition

6 pursuant to 28 U.S.C. § 2244(a) on February 4, 2011 (docs. 22 & 23).
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Petitioner now seeks reconsideration of the dismissal and/or

8 leave to amend his petition to avoid a miscarriage of justice and to
9 raise what he characterizes as a new claim that his recommitment to
10 federal prison after serving state time was unauthorized or
11 unsupported by a required order of commitment.
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II.

Motion for Reconsideration pursuant to Fed. R. Civ. P. 60

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Fed. R. Civ. P. 60(b) governs the reconsideration of final

14 orders of the district court.

Fed. R. Civ. P. 60(b) permits a

15 district court to relieve a party from a final order or judgment on
16 grounds including but not limited to 1) mistake, inadvertence,
17 surprise, or excusable neglect; 2) newly discovered evidence; 3)
18 fraud, misrepresentation, or misconduct by an opposing party; or 4)
19 any other reason justifying relief from the operation of the
20 judgment.

Fed. R. Civ. P. 60(b).

The motion for reconsideration

21 must be made within a reasonable time, and in some instances, within
22 one year after entry of the order.
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Fed. R. Civ. P. 60(c).

Petitioner’s motion itself may be a prohibited successive

24 petition.

Section 2244(a) prohibits successive petitions as

25 follows:
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No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus
to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears
that the legality of such detention has been determined by
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a judge or court of the United States on a prior application
for a writ of habeas corpus, except as provided in section
2255.
28 U.S.C. § 2244(a).

The Ninth Circuit Court of Appeals has

recognized that this provision bars successive petitions brought
pursuant to § 2241.

7 Cir. 2000).

See, Barapind v. Reno, 225 F.3d 1100, 1111 (9th

Although Rule 60(b) generally applies to habeas corpus

8 proceedings, it applies in habeas proceedings only to the extent
9 that it is not inconsistent with applicable federal statutes and
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rules.

Gonzalez v. Crosby, 545 U.S. 524, 529-36 (2005) (Section

2244(b)’s limitation on successive petitions challenging state court
detentions did not bar a Rule 60(b) motion challenging a ruling that

14 a § 2254 petition was untimely).
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In his motion for reconsideration, Petitioner challenges the

16 same issue concerning the execution of his sentence that he
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challenged in the petition that this Court dismissed as successive,
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and he seeks the same relief on the merits. To the extent that
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20 Petitioner’s motion itself constitutes a prohibited successive
21 petition, it will be dismissed.
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If the merits of Petitioner’s Rule 60(b) motion are properly
before the Court, and assuming that the motion is not untimely,
although the Court has discretion to reconsider and vacate a prior
order, Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), motions

27 for reconsideration are disfavored.

A party seeking reconsideration

28 must show more than a disagreement with the Court's decision and
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1 offer more than a restatement of the cases and arguments considered
2 by the Court before rendering the original decision.
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United States

v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
Motions to reconsider pursuant to Rule 60(b)(1) are committed to the
discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460

7 (9th Cir. 1983), which can reconsider interlocutory orders and re8 determine applications because of an intervening change in
9 controlling law, the availability of new evidence or an expanded
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factual record, or the need to correct a clear error or prevent
manifest injustice, Kern-Tulare Water Dist. v. City of

Bakersfield,

634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in

14 part on other grounds, 828 F.2d 514 (9th Cir. 1987).
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A motion for reconsideration under Rule 60(b)(6) will not be

16 granted unless the movant shows extraordinary circumstances
17 justifying relief.

Gonzalez v. Crosby, 545 U.S. 524, 536 (2005).

18 Local Rule 230(j) provides that whenever any motion has been granted
19 or denied in whole or in part, and a subsequent motion for
20 reconsideration is made upon the same or any alleged different set
21 of facts, counsel shall present to the Judge or Magistrate Judge to
22 whom such subsequent motion is made an affidavit or brief, setting
23 forth the material facts and circumstances surrounding each motion
24 for which reconsideration is sought, including information
25 concerning the previous judge and decision, what new or different
26 facts or circumstances are claimed to exist which did not exist or
27 were not shown upon such prior motion, what other grounds exist for
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1 the motion, and why the facts or circumstances were not shown at the
2 time of the prior motion.
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Here, Petitioner has not shown any law or facts that reflect

4 any abuse of discretion, clear error, or manifest injustice.
5 Accordingly, Petitioner’s motion for reconsideration will be denied.
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Finally, to the extent that Petitioner seek leave to amend his

7 petition, Petitioner’s motion will be denied because the case has
8 been dismissed.

See Beaty v. Schriro, 554 F.3d 780, 782-83 & n.1

9 (9th Cir. 2009).
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III.

Disposition

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Based on the foregoing, it is ORDERED that Petitioner’s motion

12 for reconsideration is DISMISSED and DENIED.
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15 IT IS SO ORDERED.
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Dated:

August 15, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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