Lai v. Copenhaver

Filing 30

ORDER DENYING 29 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 1/8/2016. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
EASTERN DISTRICT OF CALIFORNIA
10
11

DENNIS CHAN LAI,

12

Petitioner,

13
14

Case No. 1:14-cv-01775-LJO-EPG-HC
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 29)
PAUL COPENHAVER, Warden,

15

Respondent.

16
17

Petitioner is a federal prisoner who had filed a petition for writ of habeas corpus pursuant

18 to 28 U.S.C. § 2241.
19

On October 21, 2015, the Court adopted the Magistrate Judge’s findings and

20 recommendation, granted Respondent’s motion to dismiss, dismissed the petition as it did not
21 allege cognizable grounds for a petition pursuant to 28 U.S.C. § 2241, and declined to issue a
22 certificate of appealability because it was a successive § 2255 petition disguised as a § 2241
23 petition.
24

A petitioner may file a motion for reconsideration of a final judgment, and the motion

25 may be treated as a motion to alter or amend the judgment under Federal Rule of Civil Procedure
26 59(e) or as a motion for relief from judgment or an order under Federal Rule of Civil Procedure
27 60(b). Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later
28 than 28 days after the entry of the judgment.” Petitioner filed his motion for reconsideration on

1

1 November 16, 2015, which is within 28 days of the entry of judgment, so the Court considers
2 Petitioner’s motion under Rule 59(e). Respondent did not file a response to Petitioner’s motion
3 for reconsideration.
4

Petitioner’s arguments do not merit reconsideration of the dismissal. As stated in the

5 order to adopt, the petition actually challenges Petitioner’s sentence and conviction, and not the
6 execution of the sentence. Petitioner does not qualify for the savings clause, and therefore, the
7 petition is actually a § 2255 petition. Petitioner has not presented any arguments to warrant
8 reconsideration of the Court’s October 21, 2015 order. Therefore, the motion must be denied.
9

Accordingly, Petitioner’s motion for reconsideration is DENIED.

10
11
12

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

January 8, 2016

UNITED STATES DISTRICT JUDGE
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2