Drister v. Gill

Filing 20

ORDER denying 15 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 103/2013. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD O. DRISTER,

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Petitioner,

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v.

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A. GILL,

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Respondent.

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Case No.:1:13-cv-00841-LJO-SAB (HC)
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION
[ECF No. 15]
ORDER DIRECTING CLERK OF COURT TO
SERVE ORDER ON NINTH CIRCUIT COURT OF
APPEALS, Case No. 13-16856

On August 14, 2013, the instant petition for writ of habeas corpus filed pursuant 28 U.S.C. §

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2241 was dismissed and judgment was entered. (ECF Nos. 13, 14.) In that order, the Court also

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declined to issue a certificate of appealability. (ECF No. 13.)

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On August 21, 2013, Petitioner filed a motion for reconsideration. (ECF No. 15.)

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On September 12, 2013, Petitioner filed a notice of appeal. The appeal was processed to the

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Ninth Circuit Court of Appeals and issued case number 13-16856.
On September 27, 2013, the Ninth Circuit Court of Appeals issued and order holding its

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proceedings in abeyance pending this Court’s resolution of Petitioner’s August 21, 2013, motion for

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reconsideration. (ECF No. 19.)

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The instant petition for writ of habeas corpus was dismissed for lack of jurisdiction because

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Petitioner was challenging the validity and constitutionality of his sentence which must be raised by

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way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255.
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Petitioner moves for reconsideration of the Court’s August 14, 2013, order dismissing the

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petition for writ of habeas corpus pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.

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Petitioner does not present sufficient grounds to warrant relief pursuant to Rule 59(e) of the Federal

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Rules of Civil Procedure, which is appropriate when there are highly unusual circumstances, the

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district is presented with newly discovered evidence, the district court committed clear error, or there

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is a change in controlling law. School Dist. No. 1J, Multnomah County, Oregon v. Acands, Inc., 5

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F.3d 1255, 1262 (9th Cir. 1993). To avoid being frivolous, such a motion must provide a valid ground

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for reconsideration. See MCIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986).

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Here, there is no claim of new evidence, highly unusual circumstances, or a change in controlling law.

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Petitioner merely contends the court committed clear error by failing to consider his claim that a state

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prison official confiscated his police report in 1997 which prevented him from filing a timely section

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2255 motion.
For the reasons stated in the Findings and Recommendation issued July 12, 2013, adopted in

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full by the undersigned on August 14, 2013, Petitioner failed to demonstrate that § 2255 was

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inadequate or ineffective and he failed to demonstrate that was actually innocent of the offense.
In addition, Petitioner’s argument that this Court erred in declining to issue a certificate of

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appealbility because it is not required, is unfounded. The August 14, 2013, order specifically stated,

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“[a] certificate of appeability is required if, as here, the petition is a successive section 2255 petition

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disguised as a section 2241 petition. Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001).” (ECF

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No. 13 at 2:4-6.) Therefore, because the Court found that the instant petition was a section 2255

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petition disguised as 2241 petition, a certificate of appealability is required. Petitioner’s disagreement

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with this Court’s finding does not warrant reconsideration.

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In sum, Petitioner has not made an adequate showing for relief under any of the four basic

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grounds for reconsideration referenced above. Therefore, Plaintiff’s motion for reconsideration is

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DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

October 3, 2013

UNITED STATES DISTRICT JUDGE

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