Napier v. United States of America
Filing
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MEMORANDUM DECISION Denying Petitioner's 65 Motion For New Trial and Motion to Vacate Judgment, signed by Judge Oliver W. Wanger on 6/22/2011. ((1) Petitioners motion for new trial is DENIED as untimely. (2) Petitioners motion to vacate jud gment under Rule 60 is DENIED. (3) The United States request to set a hearing on their cross-motion for destruction of property is DENIED. The stay remains in place as to that motion. The United States shall submit a proposed form of order consistent with this memorandum decision withinfive (5) days of electronic service.) (Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DENNIS NAPIER,
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Petitioner,
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1:10-cv-00040 OWW GSA
v.
UNITED STATES OF AMERICA,
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MEMORANDUM DECISION DENYING
PETITIONER’S MOTION FOR NEW
TRIAL AND MOTION TO VACATE
JUDGMENT (DOC. 65).
Respondent.
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I. INTRODUCTION/BACKGROUND
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Before the court for decision is Petitioner Dennis
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Napier’s motion for new trial, or, in the alternative,
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motion to vacate the judgment.
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Doc. 65.
On January 30, 2009, special agents with the Bureau
of Alcohol, Tobacco, Firearms and Explosives (“ATF”),
with the assistance of officers from the Clovis Police
Department, executed a federal search warrant at
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petitioner’s residence in Clovis, California.
During the
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search, agents located and seized ten (10) firearms. 1
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The following firearms were seized: (1) Rohm, Model 57, .44
caliber, revolver, bearing serial number: LG5891; (2) Sturm, Ruger
&Co., Inc., Model P85, 9mm, pistol, bearing serial number: 30051055; (3) Mossberg, Model 500, 12 gauge, shotgun, bearing serial
number: K500339; (4) Winchester, Model 94, 30-30 caliber, rifle,
bearing serial number L203728; (5) New England Firearms Co., Pardner
Model, 12 gauge, shotgun, bearing serial number: ND259016; (6)
Marlin, Model 60, .22 caliber rifle, bearing serial number:16394321;
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The seized firearms were accepted into the ATF system on
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February 2, 2009 and a notice was sent to movant on
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February 23, 2009.
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Petitioner filed a claim, which was received by ATF
on March 25, 2009.
Doc. 1, Ex. A.
On June 26, 2009,
petitioner filed a motion for return of property pursuant
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to Federal Rule of Civil Procedure Rule 41(g).
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On January 8, 2010, the Magistrate Judge filed Findings
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and Recommendations recommending denial of Petitioner’s
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motion for return of property.
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Doc. 13.
Doc. 1.
Petitioner
filed objections on January 12, 2010, January 14, 2010,
January 19, 2010 and February 22, 2010.
Docs.
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19 & 25.
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On July 30, 2010, the United States filed a brief in
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support of its request that the District Court adopt the
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Findings and Recommendations.
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an opposition on August 30, 2010.
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2011, after a number of continuances and a hearing on
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Doc. 41.
Petitioner filed
Doc. 43.
On March 24,
February 28, 2011, the district court denied the
petitioner’s motion for return of property by adopting
the Magistrate Judge’s Findings and Recommendations, but
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(7) Russian Model 191/30, 7.62 x54R, rifle, bearing serial number
9130102189; (8) Savage, Model Stevens, .410 gauge, shotgun, bearing
no serial number; (9) Browning Arms, Model Buckmark, .22 caliber,
pistol, bearing serial number: 655NZ16161; and (10) Hi-Point, Model
C9, 9mm, pistol, bearing serial number: P1426321.
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stayed destruction of the property pending final
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determination by the appellate court.
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On May 23, 2011, Petitioner filed a “Motion for New
Trial[/] Motion to Vacate the Judgment.”
United States filed an opposition.
7, 2011.
The
Doc. 69, filed June
14, 2011.
II. DISCUSSION
A.
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Rule 59 Motion Untimely.
A motion for new trial is governed by Federal Rule of
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Doc. 65.
Doc. 68, filed June
Petitioner filed a reply.
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Doc. 64.
Civil Procedure 59, which provides that “[a] motion for
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new trial must be filed no later than 28 days after entry
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of judgment.”
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or amend a judgment brought under Rule 59(e) must
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likewise be “filed no later than 28 days after the entry
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of judgment.”
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Fed. R. Civ. P. 59(b).
A motion to alter
Here, the Order adopting the Magistrate
Judges’ Findings and Recommendations was entered March
24, 2011.
Doc. 64.
Plaintiffs’ motion for new trial,
filed May 23, 2011, even if construed as a motion to
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alter or amend judgment under Rule 59(e), is DENIED as
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untimely.
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B.
Rule 60.
Plaintiffs’ reply specifically invokes Rule 60, which
provides, in pertinent part:
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(a) Corrections Based on Clerical Mistakes;
Oversights and Omissions.
The court may correct a clerical mistake or a
mistake arising from oversight or omission
whenever one is found in a judgment, order, or
other part of the record. The court may do so on
motion or on its own, with or without notice.
But after an appeal has been docketed in the
appellate court and while it is pending, such a
mistake may be corrected only with the appellate
court's leave.
(b) Grounds for Relief from a Final Judgment,
Order, or Proceeding.
On motion and just terms, the court may relieve
a party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence that, with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged; it is based on an
earlier judgment that has been reversed or
vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Rule 60(a), which provides for corrections of
clerical mistakes, is inapplicable here, as Petitioner
claims substantive errors in the final judgment.
Rule 60(b) provides for reconsideration: “only upon a
showing of (1) mistake, surprise, or excusable neglect;
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(2) newly discovered evidence; (3) fraud; (4) a void
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judgment; (5) a satisfied or discharged judgment; or (6)
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‘extraordinary circumstances’ which would justify
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relief.”
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442
(9th Cir. 1991).
Petitioner’s motion could not plausibly be construed
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to argue that the judgment is void or has been satisfied
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or discharged.
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“surprise.”
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making objections at the February 28, 2011 because the
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He does not claim “mistake,” or
He does suggest that he was hindered in
court was extremely busy, his hearing was delayed, he had
not eaten for 20 hours, and he was suffering from stage
fright.
This is arguably an invocation of the “excusable
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neglect” basis for relief.
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satisfied the excusable neglect standard, Plaintiff fails
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to identify arguments he would have raised at the hearing
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in the absence of the above-alleged inconveniences.
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Even if, arguendo, this
Petitioner also argues that branding him a “felon”
amounted to perpetration of “fraud.”
As was explained in
both the Findings and Recommendations and the oral
statement of decision adopting the Findings and
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Recommendations, even though Petitioner’s 1993 felony
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assault conviction was set aside and declared a
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misdemeanor by the Fresno County Superior Court in 2003,
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this was erroneous as the offense was a felony based on
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the original sentence, and could not be reduced to a
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misdemeanor.
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Tr., at 11-12.
See Doc. 13 at 3-4; Doc. 61, 2/28/11 Hg.
It was not improper or “fraud” to
consider Petitioner subject to a firearms restriction.
The Federal Court implores Petitioner to seek review
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of the state court orders fixing his prior conviction as
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a felony.
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purpose, Plaintiff has not done so.
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has no jurisdiction to obtain or amend the state court
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The District Court
judgment.
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Petitioner does not claim any additional
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Despite numerous continuances for that
extraordinary circumstances that would justify relief
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from the judgment.
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arguments rehash issues already raised, considered, and
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ruled upon.
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The vast majority of Plaintiffs’
Petitioner’s motion for relief under Rule 60(b) is
DENIED.
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C.
Request to Set Hearing Re Cross-Motion for
Destruction of Property.
The district court stayed the United States’ cross-
motion for destruction of property pending the final
determination by an appellate court of petitioner’s
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motion for return of property.
Doc. 64 at 2.
The United
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States now argues that the time for appeal has passed and
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requests a hearing on their cross-motion.
In a civil case, a notice of appeal must normally be
filed “within 30 days after the judgment or order
appealed from is entered.”
Fed. R. App. P. 4(a).
The
“order” denying Petitioner’s motion for return of
property was entered March 24, 2011.
Doc. 64.
However,
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whether that order was “entered” for purposes of the
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Appellate Rules is a different question.
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58(a) requires the “judgment or order” to be set forth in
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Appellate Rule
a “separate document,” the order is not considered
“entered” until “set forth on a separate document” or
“150 days have run from entry of the judgment or order in
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the civil docket.”
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document for all orders disposing of motions, with the
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exception of certain types of motions not relevant here.
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As a rule of thumb, a “separate document” should not set
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forth the court’s reasoning or apply law to the facts.
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Rule 58(a) requires a separate
See Paddack v. Morris, 783 F.2d 844, 846 (9th Cir. 1986).
Here, although the order is short, it offers an
“additional reason for adopting the Magistrate Judge’s
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findings” not set forth in any previous document.
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does not constitute a “separate document.”
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the order was never “entered” for purposes of Appellate
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This
Accordingly,
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Rule 4.
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24, 2011 to file his notice of appeal with the Ninth
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Circuit Court of Appeals.
Petitioner has 180 days (150 plus 30) from March
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III. CONCLUSION
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For the reasons set forth above:
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(1)
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as untimely.
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Petitioner’s motion for new trial is DENIED
(2) Petitioner’s motion to vacate judgment under
Rule 60 is DENIED.
(3) The United States’ request to set a hearing
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on their cross-motion for destruction of
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property is DENIED.
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as to that motion.
The stay remains in place
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The United States shall submit a proposed form of
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order consistent with this memorandum decision within
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five (5) days of electronic service.
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SO ORDERED
Dated: June 22, 2011
/s/ Oliver W. Wanger
United States District Judge
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