Vera v. Gipson

Filing 45

FINDINGS and RECOMMENDATIONS to Deny Petitioner's 44 Motion to Vacate Judgment and to Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 02/19/2015. Referred to Judge Ishii; Objections to F&R due by 3/25/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 GUILLERMO VERA,

Case No. 1:13-cv-00814-AWI-SKO-HC

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FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION TO VACATE
JUDGMENT (DOC. 44) AND TO DECLINE
TO ISSUE A CERTIFICATE OF
APPEALABILITY

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Petitioner,
v.

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CONNIE GIPSON,
Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

Petitioner is a state prisoner who proceeded pro se and in

18 forma pauperis with a petition for writ of habeas corpus pursuant to
19 28 U.S.C. § 2254.

The matter was referred to the Magistrate Judge

20 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
21 The petition was dismissed upon the Respondent’s motion because of
22 failure to state facts entitling Petitioner to federal habeas
23 relief.

On September 12, 2014, judgment of dismissal was entered

24 and was served on Petitioner at the address listed on the docket.
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Pending before the Court is a motion to vacate the judgment

26 that was filed by Petitioner on January 8, 2015.
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I.

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The docket reflects no activity after the entry of judgment

Background

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other than the instant motion to vacate the judgment.
unsupported by documentation or a declaration.

officer a motion for an extension of time to file objections to the
Magistrate Judge’s findings and recommendations to grant the
Respondent’s motion to dismiss the petition.

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Petitioner

purports to quote the extension application, indicating that the
basis of the request was an application made in one or two other
cases that had been pending before this Court.

Petitioner does not

set forth any objections to the findings and recommendations or
otherwise set forth any substantive grounds for vacating the
judgment.
II.

Motion to Vacate the Judgment

A motion for reconsideration is treated as a motion to alter or
amend judgment under Fed. R. Civ. P. 59(e) if it is filed within the
time limit set by Rule 59(e).

United States v. Nutri-cology, Inc.,

982 F.2d 394, 397 (9th Cir. 1992).

Otherwise, it is treated as a

motion pursuant to Fed. R. Civ. P. 60(b) for relief from a judgment
or order.

American Ironworks & Erectors, Inc. v. North American

Const. Corp., 248 F.3d 892, 989-99 (9th Cir. 2001).

A motion to

alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) “must be
filed no later than 28 days after the entry of the judgment.”

Fed.

R. Civ. P. 59(e).
Here, because Petitioner’s motion was filed several months

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The findings and

recommendations had been filed on August 1, 2014.

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Petitioner states

that on August 26, 2014, he delivered to a named correctional

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The motion is

after the entry of judgment, it will be considered pursuant to Rule

28 60.
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Federal Rule of Civil Procedure 60(b) governs the

2 reconsideration of final orders of the district court.

The rule

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

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

The motion for

9 reconsideration must be made within a reasonable time, and in some
10 instances, within one year after entry of the order.

Fed. R. Civ.

11 P. 60(c).
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Rule 60(b) generally applies to habeas corpus proceedings.

13 See, Gonzalez v. Crosby, 545 U.S. 524, 530-36 (2005).

Although the

14 Court has discretion to reconsider and vacate a prior order, Barber
15 v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), motions for
16 reconsideration are disfavored.

A party seeking reconsideration

17 must show more than a disagreement with the Court's decision and
18 offer more than a restatement of the cases and arguments considered
19 by the Court before rendering the original decision.

United States

20 v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
21 Motions to reconsider pursuant to Rule 60(b)(1) are committed to the
22 discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460
23 (9th Cir. 1983), which can reconsider interlocutory orders and re24 determine applications because of an intervening change in
25 controlling law, the availability of new evidence or an expanded
26 factual record, or the need to correct a clear error or prevent
27 manifest injustice, Kern-Tulare Water Dist. v. City of
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Bakersfield,

1 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in
2 part on other grounds, 828 F.2d 514 (9th Cir. 1987).
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Local Rule 230(j) provides that whenever any motion has been

4 granted or denied in whole or in part, and a subsequent motion for
5 reconsideration is made on the same or any alleged different set of
6 facts, counsel shall present to the Judge or Magistrate Judge to
7 whom such subsequent motion is made an affidavit or brief, as
8 appropriate, setting forth the material facts and circumstances
9 surrounding each motion for which reconsideration is sought,
10 including information concerning the previous judge and decision,
11 what new or different facts or circumstances are claimed to exist
12 which did not exist or were not shown upon such prior motion, what
13 other grounds exist for the motion, and why the facts or
14 circumstances were not shown at the time of the prior motion.
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Here, Petitioner has not shown any law or facts that reflect

16 any excusable neglect, abuse of discretion, clear error, or manifest
17 injustice.

Petitioner has not shown any grounds that would justify

18 relief from the judgment.

Accordingly, it will be recommended that

19 the Court deny Petitioner’s motion to vacate the judgment.
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III.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

22 appealability, an appeal may not be taken to the Court of Appeals
23 from the final order in a habeas proceeding in which the detention
24 complained of arises out of process issued by a state court.

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25 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
26 (2003).

A district court must issue or deny a certificate of

27 appealability when it enters a final order adverse to the applicant.
28 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

2 makes a substantial showing of the denial of a constitutional right.
3 ' 2253(c)(2).

Under this standard, a petitioner must show that

4 reasonable jurists could debate whether the petition should have
5 been resolved in a different manner or that the issues presented
6 were adequate to deserve encouragement to proceed further.

Miller-

7 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
8 473, 484 (2000)).

A certificate should issue if the Petitioner

9 shows that jurists of reason would find it debatable whether: (1)
10 the petition states a valid claim of the denial of a constitutional
11 right, and (2) the district court was correct in any procedural
12 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

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

14 claims in the habeas petition, generally assesses their merits, and
15 determines whether the resolution was debatable among jurists of
16 reason or wrong.

Id.

An applicant must show more than an absence

17 of frivolity or the existence of mere good faith; however, the
18 applicant need not show that the appeal will succeed.

Miller-El v.

19 Cockrell, 537 U.S. at 338.
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Here, it does not appear that reasonable jurists could debate

21 whether the motion should have been resolved in a different manner.
22 Petitioner has not made a substantial showing of the denial of a
23 constitutional right.

Accordingly, it will be recommended that the

24 Court decline to issue a certificate of appealability.
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IV.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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Petitioner’s motion to vacate the judgment be DENIED; and

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2)

The Court DECLINE to issue a certificate appealability.
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These findings and recommendations are submitted to the United

2 States District Court Judge assigned to the case, pursuant to the
3 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
4 Rules of Practice for the United States District Court, Eastern
5 District of California.

Within thirty (30) days after being served

6 with a copy, any party may file written objections with the Court
7 and serve a copy on all parties.

Such a document should be

8 captioned AObjections to Magistrate Judge=s Findings and
9 Recommendations.@

Replies to the objections shall be served and

10 filed within fourteen (14) days (plus three (3) days if served by
11 mail) after service of the objections.

The Court will then review

12 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
13 The parties are advised that failure to file objections within the
14 specified time may result in the waiver of rights on appeal.
15 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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Dated:

February 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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