Sprague v. Beard

Filing 24

ORDER denying 23 Motion for Reconsideration signed by District Judge Dale A. Drozd on 8/8/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES SION SPRAGUE, 12 13 14 15 No. 1:16-cv-00243-DAD-JLT Petitioner, v. ORDER DENYING MOTION FOR RECONSIDERATION JEFFREY BEARD, (Doc. No. 23) Respondent. 16 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant petition was filed on February 22, 2016. On June 30, 2016, the assigned 20 magistrate judge issued findings and recommendations recommending that the petition be 21 dismissed for lack of jurisdiction and because it was untimely filed. (Doc. No. 13.) On February 22 1, 2017, the undersigned adopted those findings and recommendations, dismissed the petition, 23 entered judgment against petitioner, and ordered the case closed. (Doc. Nos. 21, 22.) On March 24 3, 2017, petitioner filed the instant motion for reconsideration. (Doc. No. 23.) 25 Federal Rule of Civil Procedure 60(b) generally governs the reconsideration of final 26 orders of the district court. Rule 60 allows the court, “[o]n motion and just terms,” to “relieve a 27 party or . . . from a final judgment, order, or proceeding,” for “mistake, inadvertence, surprise, or 28 excusable neglect” and for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1), (b)(6). 1 1 Courts have held that a motion for reconsideration may be justified on three different grounds: 2 “(1) an intervening change in controlling law; (2) the discovery of new evidence not previously 3 available; and (3) the need to correct clear or manifest error in law or fact in order to prevent 4 manifest injustice.” Kowalski v. Anova Food, LLC, 958 F. Supp. 2d 1147, 1153 (D. Haw. 2013) 5 (citing Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)). Petitioner 6 argues that the third of these circumstances is present. 7 Here, petitioner asserts that, because the magistrate judge concluded habeas jurisdiction 8 will not lie in this case, she should not have reached the issue of whether the petition was timely. 9 (Doc. No. 23.) Petitioner asserts this is a “manifest error” of law resulting in “manifest injustice” 10 to him, because in its absence, he would request the court issue a certificate of appealability on 11 the jurisdictional question. (Id. at 5–6) (arguing it is “debatable whether he meets the in-custody 12 requirement for habeas review”). However, petitioner provides neither argument nor authority 13 showing Bailey v. Hill, 599 F.3d 976 (9th Cir. 2010)—where the Ninth Circuit held habeas 14 jurisdiction does not lie for a petitioner seeking only to overturn a restitution order and not 15 challenging the conviction or confinement itself—is no longer good law or presents a debatable 16 question regarding the court’s habeas jurisdiction over this case. Indeed, Bailey has been cited 17 recently and favorably for this proposition by both this circuit and the Third Circuit. Tavares v. 18 Whitehouse, 851 F.3d 863, 882 n.5 (9th Cir. 2017); United States v. Ross, 801 F.3d 374, 380 (3d 19 Cir. 2015). Lacking any argument or authority to the contrary, this court would not issue a 20 certificate of appealability on the issue of whether it has jurisdiction over a petition seeking to 21 challenge only a restitution order. Therefore, petitioner cannot show he suffered a “manifest 22 injustice” by this court’s decision dismissing the petition both for lack of jurisdiction and on 23 grounds of untimeliness. 24 25 26 Accordingly, petitioner’s motion for reconsideration (Doc. No. 23) is denied. IT IS SO ORDERED. Dated: August 8, 2017 UNITED STATES DISTRICT JUDGE 27 28 2

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