Barter v. Brown, et al.

Filing 14

ORDER Denying 13 Motion for Reconsideration, signed by Magistrate Judge Stanley A. Boone on 3/13/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEVI MICAH BARTER,

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Petitioner,

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v.
JERRY BROWN, Governor, et al.,
Respondents.

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1:14-cv-00151-SAB-HC
ORDER DENYING MOTION FOR
RECONSIDERATION
[ECF No. 13]

Petitioner is a state prisoner proceeding pro se with a petition for writ of mandamus pursuant to

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28 U.S.C. § 1361. On February 21, 2014, he consented to the jurisdiction of the Magistrate Judge

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pursuant to 28 U.S.C. § 636(c).

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On February 25, 2014, the Court dismissed the petition. Judgment was entered the same day.

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On March 10, 2014, Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil

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Procedure § 60(b).

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Rule 60(b) of the Federal Rules of Civil Procedure provides:

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On motion and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier

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judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.

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Petitioner’s arguments do not merit reconsideration of the dismissal. In his petition, Petitioner

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claimed that the warden of Kern Valley State Prison was refusing to adjudicate his “602” appeals in a

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“draconian, arrogant manner.” (Petition at 1.) He requested that the Court issue a writ of mandamus

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directing the warden to “‘process’ and ‘answer’ all actions requested on [Petitioner’s] screened out

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‘602.’” (Petition at 1.) Petitioner complained that the warden by virtue of his actions was obfuscating

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his attempt to seek the earliest possible release date he was entitled to under Apprendi v. New Jersey,

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530 U.S. 466 (2000) and California Proposition 36 of 2012.

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In his motion for reconsideration, Petitioner now contends his request for writ of mandamus is

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only one component of the case he seeks to present. He states he is also seeking a petition for writ of

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habeas corpus and he cites Apprendi in support. The Court is not persuaded. To the extent Petitioner

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seeks a writ of mandamus directing the warden of his institution to perform his duties as required

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under California law, the Court is without jurisdiction. See Pennhurst State Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 106 (1984) (11th Amendment prohibits federal district court from directing

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state officials in the performance of their duties). To the extent Petitioner seeks to challenge his

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underlying conviction under Apprendi, he must do so in the district where he was convicted. Since

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Petitioner was convicted in the Los Angeles County Superior Court, the proper venue for a habeas

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action is the Central District of California. If Petitioner desires to file a petition for writ of habeas

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corpus, he must do so in the Central District using the proper forms as prescribed by the local rules of

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the Central District or as set forth in the Rules Governing Section 2254 Cases.

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Accordingly, Petitioner’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

March 13, 2014
UNITED STATES MAGISTRATE JUDGE

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