Cartwright v. Gipson
Filing
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ORDER DENYING 71 75 Motions for Reconsideration and for Extension of Time to File Request for Certificate of Appealability signed by District Judge Dale A. Drozd on 8/16/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HENRY CARTWRIGHT,
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Petitioner,
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v.
CONNIE GIPSON,
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ORDER DENYING MOTIONS FOR
RECONSIDERATION AND FOR
EXTENSION OF TIME TO FILE REQUEST
FOR CERTIFICATE OF APPEALABILITY
Respondent.
(Doc. Nos. 71, 75)
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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No. 1:13-cv-00463-DAD-MJS
under the authority of 28 U.S.C. § 2254.
On March 15, 2016, the assigned magistrate judge issued findings and recommendations
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recommending that the petition for writ of habeas corpus be denied on the merits. (Doc. No. 58.)
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The findings and recommendations were served on all parties with notice that any objections
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thereto were to be filed within thirty days of the date of service of the findings and
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recommendation. Petitioner requested and was granted four extension of time in which to file
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objections. (Doc. Nos. 61, 63, 65, 67.) The assigned magistrate judge warned petitioner in the
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October 5, 2016 order granting his fourth request for an extension of time that “[n]o further
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extensions of time will be granted except upon a showing of exceptional circumstances beyond
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those already known to Petitioner.” (Doc. No. 67.)
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Nonetheless, on November 7, 2016, petitioner filed a fifth motion for extension of time to
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file objections to the findings and recommendations. (Doc. No. 68.) However, petitioner did not
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show exceptional circumstances justifying the granting of a further extension of time in which to
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file his objections. Accordingly, on May 8, 2017, the undersigned denied petitioner’s fifth
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motion for extension of time, adopted the findings and recommendation, denied the petition for
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writ of habeas corpus on the merits, and declined to issue a certificate of appealability. (Doc. No.
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69.)
Now before the court are petitioner’s motions for reconsideration and for extension of
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time to file a certificate of appealability. (Doc. Nos. 71, 75.) The court construes this as a motion
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for reconsideration under Rule 60. Among other provisions, Rule 60 allows the court, “[o]n
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motion and just terms,” to “relieve a party . . . from a final judgment, order, or proceeding,” for
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“mistake, inadvertence, surprise, or excusable neglect” and for “any other reason that justifies
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relief.” Fed. R. Civ. P. 60(b)(1), (b)(6). Rule 60(b)(6)’s catch-all provision is to be “used
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sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where
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extraordinary circumstances prevented a party from taking timely action to prevent or correct an
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erroneous judgment.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoting Latshaw v.
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Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)). Generally, relief under Rule
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60 will be available in three instances: “1) when there has been an intervening change of
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controlling law, 2) new evidence has come to light, or 3) when necessary to correct a clear error
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or prevent manifest injustice.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111,
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1131 (E.D. Cal. 2001). Moreover, “[a] motion for reconsideration is not a vehicle to reargue the
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motion.” Id. (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp. 834, 856 (D.N.J.
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1992)).
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Petitioner here asserts that a lack of access to the prison law library, the medications he is
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taking for his mental health, and problems receiving mail from the court, collectively provide
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reasons for the court to reconsider the denial of petitioner’s request for an additional extension of
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time to file objections to the findings and recommendations. (Doc. No. 71.) Notably, however,
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petitioner has still not presented any objections to or arguments addressing the merits of the
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findings and recommendations. Petitioner has managed to successfully file at least seven separate
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requests or motions with the court during this intervening time, many of which were granted,
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indicating he has the capacity to file responsive and necessary documents in this case. (Doc. Nos.
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60, 62, 64, 66, 68, 71, 75.) At this point, almost eighteen months have elapsed since the findings
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and recommendations were issued. Petitioner has had ample time to set out any objections he has
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to the magistrate judge’s findings and recommendations, and none have been forthcoming.
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Petitioner has not met his burden of showing that there has been an intervening change in the law,
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any new evidence to consider, or that there is clear error or manifest injustice. Accordingly, the
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motion for reconsideration is denied.
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Moreover, while the caption of these motions indicated petitioner wishes the court to grant
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him an extension of time to file a request for a certificate of appealability, no substantive
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discussion of why such a certificate should have issued was included by petitioner in those
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motions. (Doc. Nos. 71, 75.) The court declined to issue a certificate of appealability, noting that
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petitioner has not demonstrated that “reasonable jurists would find the district court’s assessment
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of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Petitioner has not provided any reasons for the court to reconsider that decision. The court will
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therefore deny the request for an extension of time to file a request for a certificate of
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appealability without prejudice to petitioner’s right to file a motion in the Ninth Circuit Court of
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Appeals seeking an extension of time to request a certificate of appealability from that court. See
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Ninth Circuit Rule 22-1(d) (“If the district court denies a COA as to all issues, petitioner may file
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a motion for a COA in the court of appeals within 35 days of the district court’s entry of its order
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(1) denying a COA in full, or, (2) denying a timely filed post-judgment motion, whichever is
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later. If petitioner does not file a COA motion with the court of appeals after the district court
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denies a COA motion in full, the court of appeals will deem the notice of appeal to constitute a
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motion for a COA.”)
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for the reasons set forth above:
1. Petitioner’s motions for reconsideration (Doc. Nos. 71, 75) are denied; and
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2. Petitioner’s motions for extension of time to file a request for a certificate of appealability
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are denied without prejudice to his right to request the same from the Ninth Circuit Court
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of Appeals.
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IT IS SO ORDERED.
Dated:
August 16, 2017
UNITED STATES DISTRICT JUDGE
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