Thompson v. Hill

Filing 18

ORDER DISREGARDING Objections 17 ; FINDINGS and RECOMMENDATIONS to Deny Petitioner's Motion for Reconsideration 17 and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 3/16/15: 30-Day Deadline for Objections. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ALLEN C. THOMPSON, Case No. 1:13-cv-02094-LJO-SKO-HC 12 ORDER DISREGARDING OBJECTIONS (DOC. 17) 13 Petitioner, v. FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION FOR RECONSIDERATION (DOC. 17) AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 14 15 16 RICK HILL, Warden, Respondent. OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 that was dismissed with prejudice by this Court as untimely upon the Respondent’s motion. The Court adopted the Magistrate Judge’s findings and recommendations and declined to issue a certificate of appealability; judgment for Respondent was entered on August 27, 2014. (Docs. 15 & 16.) On the same date, the order and judgment were served by mail on Petitioner at the address listed on the docket. No notice of appeal was filed. 1 1 I. Order Disregarding Petitioner’s Objections 2 On February 24, 2015, Petitioner filed objections to the 3 findings and recommendations of the Magistrate Judge in which he 4 argues that the untimeliness of his petition should not bar his 5 petition because he is challenging an unauthorized sentence. 6 Because the time for filing objections passed, and judgment was 7 subsequently entered, the case has been closed. 8 Thus, to the extent that Petitioner’s filing is understood to 9 be objections to the findings and recommendations, the objections 10 are DISREGARDED. 11 II. Motion for Reconsideration 12 It is possible that in filing “objections,” Petitioner intended 13 to seek reconsideration of the dismissal of his petition. In an 14 abundance of caution, the Court will consider the objections as a 15 motion for reconsideration. 16 A motion for reconsideration is treated as a motion to alter 17 or amend judgment under Fed. R. Civ. P. 59(e) if it is filed within 18 the time limit set by Rule 59(e). United States v. Nutri-cology, 19 Inc., 982 F.2d 394, 397 (9th Cir. 1992). Otherwise, it is treated 20 as a motion pursuant to Fed. R. Civ. P. 60(b) for relief from a 21 judgment or order. American Ironworks & Erectors, Inc. v. North 22 American Const. Corp., 248 F.3d 892, 989-99 (9th Cir. 2001). A 23 motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 24 59(e) “must be filed no later than 28 days after the entry of the 25 judgment.” 26 Fed. R. Civ. P. 59(e). Here, reference to Petitioner’s “objections” shows that 27 Petitioner signed a declaration under penalty of perjury that he 28 deposited the document in a mailbox for United States mail that was 2 1 provided by the prison for that purpose; the date on the declaration 2 is February 21, 2015. (Doc. 17 at 3.) The Court will thus consider 3 Petitioner’s motion to have been constructively filed on that date 1 4 pursuant to the mailbox rule. Thus, the motion was served more than 5 twenty-eight days after the entry of judgment on August 27, 2014. 6 Therefore, the Court will not consider the motion pursuant to Rule 7 59(e). To the extent Petitioner’s motion is considered as a motion for 8 9 reconsideration, Federal Rule of Civil Procedure 60(b) governs the 10 reconsideration of final orders of the district court. The rule 11 permits a district court to relieve a party from a final order or 12 judgment on grounds including but not limited to 1) mistake, 13 inadvertence, surprise, or excusable neglect; 2) newly discovered 14 evidence; 3) fraud, misrepresentation, or misconduct by an opposing 15 party; or 4) any other reason justifying relief from the operation 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Dates of filing are calculated pursuant to the “mailbox rule.” Habeas Rule 3(d) provides that a paper filed by a prisoner is timely if deposited in the institution’s internal mailing system on or before the last day for filing. The rule requires the inmate to use the custodial institution’s system designed for legal mail; further, timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement setting forth the date of deposit and verifying prepayment of first-class postage. Id. Habeas Rule 3(d) reflects the “mailbox rule,” initially developed in case law, pursuant to which a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court.” Houston v. Lack, 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). The mailbox rule, liberally applied, in effect assumes that absent evidence to the contrary, a legal document is filed on the date it was delivered to prison authorities, and a petition was delivered on the day it was signed. Houston v. Lack, 487 U.S. at 275-76; Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Campbell v. Henry, 614 F.3d at 1058-59; Lewis v. Mitchell, 173 F.Supp.2d 1057, 1058 n.1 (C.D.Cal. 2001). The date a petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). 3 1 of the judgment. Fed. R. Civ. P. 60(b). The motion for 2 reconsideration must be made within a reasonable time, and in some 3 instances, within one year after entry of the order. Fed. R. Civ. 4 P. 60(c). 5 Rule 60(b) generally applies to habeas corpus proceedings. 6 See, Gonzalez v. Crosby, 545 U.S. 524, 530-36 (2005). Although the 7 Court has discretion to reconsider and vacate a prior order, Barber 8 v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), motions for 9 reconsideration are disfavored. A party seeking reconsideration 10 must show more than a disagreement with the Court's decision and 11 offer more than a restatement of the cases and arguments considered 12 by the Court before rendering the original decision. United States 13 v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). 14 Motions to reconsider pursuant to Rule 60(b)(1) are committed to the 15 discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460 16 (9th Cir. 1983), which can reconsider interlocutory orders and re17 determine applications because of an intervening change in 18 controlling law, the availability of new evidence or an expanded 19 factual record, or the need to correct a clear error or prevent 20 manifest injustice, Kern-Tulare Water Dist. v. City of Bakersfield, 21 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in 22 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 23 A motion for reconsideration under Rule 60(b)(6) will not be 24 granted unless the movant shows extraordinary circumstances 25 justifying relief. 26 Gonzalez v. Crosby, 545 U.S. at 536. Local Rule 230(j) provides that whenever any motion has been 27 granted or denied in whole or in part, and a subsequent motion for 28 reconsideration is made upon the same or any allegedly different set 4 1 of facts, counsel shall file an affidavit or brief, as appropriate, 2 setting forth the material facts and circumstances surrounding each 3 motion for which reconsideration is sought, including information 4 concerning the previous judge and decision, what new or different 5 facts or circumstances are claimed to exist which did not exist or 6 were not shown in the prior motion, what other grounds exist for the 7 motion, and why the facts or circumstances were not shown at the 8 time of the prior motion. 9 Here, because Petitioner challenges a determination of the 10 timeliness of his petition, and not a disposition on the merits of 11 the claims set forth in the petition, the Court will assume that the 12 motion for reconsideration is not a prohibited successive petition. 13 See 28 U.S.C. § 2244(b); Gonzalez v. Crosby, 545 U.S. at 529-36 14 (holding that § 2244(b)’s limitation on successive petitions did not 15 bar a Rule 60(b) motion challenging a ruling that a § 2254 petition 16 was untimely). 17 Considering Petitioner’s motion pursuant to Rule 60(b), the 18 Court concludes that Petitioner has not shown any mistake, 19 inadvertence, surprise, excusable neglect, newly discovered 20 evidence, fraud, misrepresentation, misconduct by an opposing party, 21 or any other reason justifying relief from the operation of the 22 judgment. There is no showing of any intervening change in the 23 controlling law or any extraordinary circumstances warranting 24 relief. 25 Accordingly, it will be recommended that Petitioner’s motion 26 for reconsideration be denied. 27 III. Certificate of Appealability 28 Unless a circuit justice or judge issues a certificate of 5 1 appealability, an appeal may not be taken to the Court of Appeals 2 from the final order in a habeas proceeding in which the detention 3 complained of arises out of process issued by a state court. 28 4 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 5 (2003). A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the applicant. 7 Habeas Rule 11(a). 8 A certificate of appealability may issue only if the applicant 9 makes a substantial showing of the denial of a constitutional right. 10 ' 2253(c)(2). Under this standard, a petitioner must show that 11 reasonable jurists could debate whether the petition should have 12 been resolved in a different manner or that the issues presented 13 were adequate to deserve encouragement to proceed further. Miller- 14 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 15 473, 484 (2000)). A certificate should issue if the Petitioner 16 shows that jurists of reason would find it debatable whether: (1) 17 the petition states a valid claim of the denial of a constitutional 18 right, and (2) the district court was correct in any procedural 19 ruling. 20 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 21 claims in the habeas petition, generally assesses their merits, and 22 determines whether the resolution was debatable among jurists of 23 reason or wrong. Id. An applicant must show more than an absence 24 of frivolity or the existence of mere good faith; however, the 25 applicant need not show that the appeal will succeed. Miller-El v. 26 Cockrell, 537 U.S. at 338. 27 Here, it does not appear that reasonable jurists could debate 28 whether the motion should have been resolved in a different manner. 6 1 Petitioner has not made a substantial showing of the denial of a 2 constitutional right. Therefore, it will be recommended that the 3 Court decline to issue a certificate of appealability. 4 IV. Recommendations 5 In accordance with the foregoing, it is RECOMMENDED that: 6 1) Petitioner’s motion for reconsideration be DENIED; and 7 2) The Court DECLINE to issue a certificate of appealability. 8 These findings and recommendations are submitted to the United 9 States District Court Judge assigned to the case, pursuant to the 10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern 12 District of California. Within thirty (30) days after being served 13 with a copy, any party may file written objections with the Court 14 and serve a copy on all parties. Such a document should be 15 captioned AObjections to Magistrate Judge=s Findings and 16 Recommendations.@ Replies to the objections shall be served and 17 filed within fourteen (14) days (plus three (3) days if served by 18 mail) after service of the objections. The Court will then review 19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 20 The parties are advised that failure to file objections within the 21 specified time may result in the waiver of rights on appeal. 22 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 23 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 IT IS SO ORDERED. 26 27 Dated: March 16, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 7

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