Exmundo v. Trimble

Filing 11

ORDER signed by Chief Judge Anthony W. Ishii on 5/10/2012 denying motion for reconsideration of dismissal of the petition re 7 , 8 , 9 , 10 and declining to issue a certificate of appealability. (Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11
12
13
14

EMELITO EXMUNDO,

)
)
Petitioner,
)
)
)
v.
)
)
R. H., TRIMBLE, Acting Warden,)
)
Respondent.
)
)
)

1:12-cv—00143–AWI-BAM-HC
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION OF THE
DISMISSAL OF THE PETITION (DOCS.
10, 7-9)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

15
16

Petitioner is a state prisoner who proceeded pro se and in

17

forma pauperis with a petition for writ of habeas corpus pursuant

18

to 28 U.S.C. § 2254.

19

motion for reconsideration of the dismissal of the petition,

20

which was filed on April 26, 2012.

Pending before the Court is Petitioner’s

21

I.

22

On March 2, 2012, the Magistrate Judge issued findings and

Background

23

recommendations to dismiss the petition and to decline to issue a

24

certificate of appealability.

25

informed Petitioner that objections were due within thirty days

26

of service, and they were mailed to Petitioner on the day they

27

were filed.

28

pertinent period.

(Docs. 7-9.)

The findings and recommendations

No objections were filed within the

On April 24, 2012, the Court adopted the
1

1

findings and recommendations to dismiss the petition without

2

leave to amend, and the case was dismissed.

3

In the motion for reconsideration, Petitioner states that he

4

does not object to the findings and recommendations, but rather

5

he is requesting reconsideration of facts, and he is submitting

6

the request to clarify factual misunderstandings.

7

verified.

8

reconsideration of the Court’s dismissal of his petition.

9

His request is

His request will be considered as a request for

In the dismissed petition, Petitioner raised various claims

10

concerning a prison disciplinary finding that he was guilty of

11

unauthorized possession of medications.1

12

were analyzed in the findings and recommendations, which were

13

adopted in full by the Court in connection with its order of

14

dismissal.

15

II.

16

Petitioner’s claims

Motion for Reconsideration
A.

Legal Standards

17

Federal Rule of Civil Procedure 60(b) governs the

18

reconsideration of final orders of the district court.

19

permits a district court to relieve a party from a final order or

20

judgment on various grounds, including 1) mistake, inadvertence,

21

surprise, or excusable neglect; 2) newly discovered evidence;

The rule

22
23
24
25
26
27
28

1

Petitioner had argued that the evidence supporting the findings was a
result of an unconstitutional and retaliatory search of Petitioner’s cell and
seizure of medication therein. He had contended that he suffered violations
of his right to due process of law because the hearing officer was biased,
failed to provide Petitioner with a rules violation report and information
concerning a previous grievance filed by Petitioner, and deprived Petitioner
of his right to prepare a defense to the charges by failing to provide
Petitioner with notice twenty-four hours in advance of a hearing with respect
to a new, lesser violation of possession of an unauthorized medication that
the hearing officer ultimately found that Petitioner had committed.
Petitioner also claimed that state law required evidence of a laboratory test
to identify the medication.

2

1

3) fraud or misconduct by an opposing party; 4) a void judgment;

2

5) a satisfied judgment; or 6) any other reason that justifies

3

relief from the judgment.

4

reconsider are committed to the discretion of the trial court.

5

Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir. 1987);

6

Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).

7

succeed, a party must set forth facts or law of a strongly

8

convincing nature to induce the Court to reverse its prior

9

decision.

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

Motions to

To

See, e.g., Kern-Tulare Water Dist. v. City of

10

Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part

11

and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987),

12

cert. denied, 486 U.S. 1015 (1988).

13

that "[c]lause 60(b)(6) is residual and ‘must be read as being

14

exclusive of the preceding clauses.'"

15

Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.

16

1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th

17

Cir. 1981)).

18

‘extraordinary circumstances.'" Id.

19

The Ninth Circuit has stated

LaFarge Conseils et

Accordingly, "the clause is reserved for

Further, when filing a motion for reconsideration, Local

20

Rule 230(j) requires a party to show the "what new or different

21

facts or circumstances are claimed to exist which did not exist

22

or were not shown upon such prior motion, or what other grounds

23

exist for the motion," as well as “why the facts or circumstances

24

were not shown at the time of the prior motion.”

25

A district court may properly deny a motion for

26

reconsideration that simply reiterates an argument already

27

presented by the petitioner.

28

255 (9th Cir. 1995).

Maraziti v. Thorpe, 52 F.3d 252,

3

1
2
3

B.

Analysis
1. Laboratory Testing of the Medication

Petitioner states that California regulations require a

4

field test to identify medications as a safeguard against

5

arbitrary findings of possession of controlled substances.

6

However, this claim is based on state law.

Such a claim

7

does not provide a basis for relief pursuant to Rule 60 because

8

it is not cognizable in this proceeding.

9

F.3d 616, 623 (9th Cir. 2002); Langford v. Day, 110 F.3d 1380,

10
11
12

Souch v. Schaivo, 289

1389 (9th Cir. 1996).
2.

Bias

Petitioner points to what he alleges are additional grounds

13

for a finding of bias on the part of the hearing officer,

14

including the officer’s failure to provide Petitioner a rules

15

violation report (RVR) and to give Petitioner post-hearing notice

16

that he was finding Petitioner not guilty of the more serious

17

offense of possession of a controlled substance but guilty of the

18

lesser offense of unauthorized possession of medication.

19

Petitioner also points to what he characterizes as an absence of

20

any legitimate evidence in support of his guilt.

21

The findings and recommendations noted that an adjudicator’s

22

unfavorable rulings in the course of litigation generally do not

23

constitute evidence of bias and are not sufficient to overcome

24

the presumption of fairness given to a hearing officer’s rulings.

25

(Doc. 7, 17-18.)

26

the adequacy of the evidence to support the finding and the

27

constitutionality of the hearing officer’s finding of guilt of a

28

lesser violation without a second hearing were addressed as well.

Petitioner’s separate contentions concerning

4

1

(Id. at 10-15.)

2

alleged new facts or set forth any legal grounds that would

3

entitle him to relief under Rule 60 with respect to his claim of

4

bias on the part of the hearing officer.

5

In the present application, Petitioner has not

3.

Notice

6

Petitioner reiterates his claim that he was entitled to

7

another hearing before the hearing officer concluded that he was

8

guilty of a lesser violation based on the evidence produced at

9

the disciplinary hearing on the greater violation.

However,

10

Petitioner has not alleged any new facts or set forth any

11

additional grounds for relief except to refer somewhat indirectly

12

to the hearing officer’s having consulted with another

13

lieutenant, whom Petitioner does not name, and to allege

14

generally that a second hearing was held on April 22, 2010, which

15

has been concealed from the record.

(Doc. 10, 2-3.)

16

Petitioner’s conclusional assertions are not borne out by

17

the record, which reflects that the hearing officer’s decision

18

was based on specified evidence, including the pharmacist’s

19

report concerning the medication and the reporting employee’s

20

written report documenting Petitioner’s admission that the

21

medications were his.

22
23

4.

(Pet. 45.)

State Regulatory Law

Petitioner’s argument that the disciplinary procedures in

24

his case violated state regulations concerning the manner in

25

which disciplinary hearings are to be held does not warrant

26

relief under Rule 60 because, as previously set forth, a claim

27

based on state law is not cognizable in a proceeding pursuant to

28

28 U.S.C. sec. 2254.
5

1

5.

Cell Search

2

Petitioner simply reiterates his claim that his First

3

Amendment rights were violated by the search of his cell and the

4

seizure of medications discovered in the course of the search.

5

In dismissing this claim without leave to amend, the Court ruled

6

that Petitioner’s claim related to conditions of confinement and

7

could be raised in an action undertaken pursuant to 42 U.S.C.

8

sec. 1983.

9

this determination.

10

Petitioner has not shown any basis for relief from

To the extent that Petitioner complains of a violation of a

11

right to be free from unreasonable searches and seizures,

12

Petitioner has not presented any new facts or legal basis

13

warranting relief from the determination that he had not

14

demonstrated that the search of his cell was unreasonable.

15

Petitioner has not presented any new facts or any other

16

basis for relief from the Court’s determination that Petitioner

17

had not established the prejudice that must be shown in order to

18

be entitled to relief pursuant to section 2254.

19

assertion that the pills were planted lacks a foundation, and his

20

specific allegation that the whole pills discovered in his cell

21

could not have been his because the medications he was given by

22

prison staff were in a crushed form, are undercut by the record

23

evidence of his admission that the seized substances were indeed

24

his.

25

Petitioner’s

In summary, Petitioner has not alleged any new facts,

26

circumstances of an extraordinary nature, or any other ground

27

that pursuant to Rule 60 would warrant relief from the Court’s

28

dismissal of the petition.
6

1

Accordingly, the request for reconsideration will be denied.

2

III.

3

Unless a circuit justice or judge issues a certificate of

Certificate of Appealablity

4

appealability, an appeal may not be taken to the Court of Appeals

5

from the final order in a habeas proceeding in which the

6

detention complained of arises out of process issued by a state

7

court.

8

U.S. 322, 336 (2003).

9

by the AEDPA, a court properly considers whether or not to issue

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
Under 28 U.S.C. section 2253, as amended

10

a certificate of appealability with respect to the denial of a

11

motion to reconsider a dispositive order in a habeas proceeding

12

pursuant 28 U.S.C. section 2254.

13

1382 (9th Cir. 1998).

14

Langford v. Day, 134 F.3d 1381,

A certificate of appealability may issue only if the

15

applicant makes a substantial showing of the denial of a

16

constitutional right.

17

petitioner must show that reasonable jurists could debate whether

18

the petition should have been resolved in a different manner or

19

that the issues presented were adequate to deserve encouragement

20

to proceed further.

21

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

22

certificate should issue if the Petitioner shows that jurists of

23

reason would find it debatable whether the petition states a

24

valid claim of the denial of a constitutional right and that

25

jurists of reason would find it debatable whether the district

26

court was correct in any procedural ruling.

27

529 U.S. 473, 483-84 (2000).

28

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336
A

Slack v. McDaniel,

In determining this issue, a court conducts an overview of
7

1

the claims in the habeas petition, generally assesses their

2

merits, and determines whether the resolution was debatable among

3

jurists of reason or wrong.

4

applicant to show more than an absence of frivolity or the

5

existence of mere good faith; however, it is not necessary for an

6

applicant to show that the appeal will succeed.

7

Cockrell, 537 U.S. at 338.

Id.

It is necessary for an

Miller-El v.

8

A district court must issue or deny a certificate of

9

appealability when it enters a final order adverse to the

10
11

applicant.

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

12

debate whether the petition should have been resolved in a

13

different manner.

14

of the denial of a constitutional right.

15
16

Petitioner has not made a substantial showing

Accordingly, the Court will decline to issue a certificate
of appealability.

17

IV.

18

In accordance with the foregoing analysis, it is ORDERED

19
20
21
22

Disposition

that:
1) Petitioner’s motion for reconsideration of the dismissal
of the petition is DENIED; and
2) The Court DECLINES to issue a certificate of

23

appealability.

24

IT IS SO ORDERED.

25
26

Dated:
0m8i78

May 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

27
28
8