Provencio v. Lizzarraga

Filing 37

ORDER DENYING 32 Motion for Relief from Judgment and DECLINING to Issue Certificate of Appealability, signed by Chief Judge Lawrence J. O'Neill on 03/12/2018. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALFREDO PROVENCIO,

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Petitioner,

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v.

Case No. 1:15-cv-01327-LJO-MJS (HC)
ORDER DENYING MOTION FOR RELIEF
FROM JUDGMENT AND DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY

SHAWN HATTON, Warden

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Respondent.

(ECF No. 32)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Before the Court is Petitioner’s January 8, 2018

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motion for relief from judgment.

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I.

Relevant Procedural History

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On October 31, 2017, the assigned Magistrate Judge issued findings and

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recommendations to deny the petition for writ of habeas corpus. (ECF No. 26.) Petitioner

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sought a sixty-day extension of time to file objections thereto. (ECF No. 27.) On

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December 1, 2017, the Magistrate Judge granted Petitioner’s request, extending his

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deadline for filing objections to sixty days from that date. (ECF No. 28.) However, on

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December 7, 2017, Petitioner filed his objections. (ECF No. 29.) Following de novo

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review of the case, including Petitioner’s December 7, 2017 objections, the undersigned

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adopted the findings and recommendations, denied the petition for writ of habeas

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corpus, and declined to issue a certificate of appealability. (ECF No. 30.)

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On January 8, 2018, Petitioner filed the instant motion to alter or amend the

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judgment pursuant to Federal Rule of Civil Procedure 52(b). (ECF No. 32.) He states

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that the objections filed December 7, 2017 were hastily written without knowledge of

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whether he would be granted his requested extension. He requests to have the full time

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allowed to file his completed objections. He does provide any information on the

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substance of his intended objections.

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II.

Applicable Law

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Petitioner’s motion is brought pursuant to Rule 52(b). This rule permits a party to

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file a motion to amend the findings or make additional findings, and to amend the

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judgment accordingly. It applies in actions tried on the facts without a jury. Fed. R. Civ.

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P. 52(a). Motions under Rule 52(b) are primarily designed to correct findings of fact

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which are central to the ultimate decision. Rule 52(b) motions are appropriately granted

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in order to correct manifest errors of law or fact or to address newly discovered evidence

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or controlling case law. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219-1220 (5th

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Cir. 1986). A motion to amend a court's factual and legal findings is properly denied

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where the proposed additional facts would not affect the outcome of the case or are

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immaterial to the court's conclusions. Weyerhaeuser Co. v. Atropos Island, 777 F.2d

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1344, 1352 (9th Cir. 1985).

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Petitioner’s motion also in entitled “Motion to Alter or Amend.” He therefore may

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have intended to seek relief under Rule 59(e), which permits a court to alter or amend a

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judgment. “There are four grounds upon which a Rule 59(e) motion may be granted:

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1) the motion is necessary to correct manifest errors of law or fact upon which the

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judgment is based; 2) the moving party presents newly discovered or previously

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unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or

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4) there is an intervening change in controlling law.” Turner v. Burlington Northern Santa

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Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (punctuation modified).

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Finally, although not cited by Petitioner, Rule 60(b) allows the Court to relieve a

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party from a final judgment or order on grounds of: “(1) mistake, inadvertence, surprise,

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or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . ,

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misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied . . . ; it is based on an earlier judgment that has been

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reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other

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reason that justifies relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly

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as an equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

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(internal quotations marks and citation omitted). The moving party bears the burden of

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demonstrating that relief under Rule 60(b) is appropriate. Cassidy v. Tenorio, 856 F.2d

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1412, 1415 (9th Cir. 1988).

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III.

Discussion

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Petitioner provides no basis to alter or amend the judgment, or to provide him

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relief therefrom. He states only that he wishes to utilize the full sixty days afforded him by

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the Magistrate Judge. However, Petitioner filed objections, and those were reviewed by

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the Court. He does not explain how or why those objections were inadequate. Although

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the full objection period has now passed, Petitioner did not file any further objections,

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with his motion or otherwise.

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Additionally, to the extent Petitioner merely wishes to expand on the factual

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claims stated in his prior objections, such efforts would be unavailing. In reviewing

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Petitioner's claims and determining if the state court decision was reasonable, this Court

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may only rely upon the record before the state court. See Cullen v. Pinholster, 131 S. Ct.

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1388, 1398 (2011) ("We now hold that review under § 2254(d)(1) is limited to the record

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that was before the state court that adjudicated the claim on the merits."). Having

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reviewed the petition and determined that the state court’s ruling was not unreasonable,

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the Court has no basis to consider new facts not presented to the state court.

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Because Petitioner has not provided a basis to alter or amend the judgment or to

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provide him relief, the motion to alter or amend will be denied.

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IV.

Certificate of Appealability

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to

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appeal a district court’s denial of his petition, and an appeal is only allowed in certain

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circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Specifically, the

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federal rules governing habeas cases brought by state prisoners require a district court

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issuing an order denying a habeas petition to either grant or deny therein a certificate of

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appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a

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certificate of appealability “only if the applicant has made a substantial showing of the

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denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate

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which issues satisfy this standard, 28 U.S.C. § 2253(c)(3). “Where a district court has

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rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c)

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is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a showing.

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Accordingly, a certificate of appealability will not be issued.

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V.

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Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:

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1. Petitioner’s motion to alter or amend is DENIED; and

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2. The Court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 12, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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