Ochoa v. On Habeas Corpus

Filing 14

ORDER construing Petitioner's Motion to set aside Judgment as a Motion for Reconsideration and denying Petitioner's Motion signed by District Judge Dale A. Drozd on 3/30/2020. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NERSES TASHCHYAN,

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Petitioner,

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ORDER CONSTRUING PETITIONER’S
MOTION TO SET ASIDE JUDGMENT AS A
MOTION FOR RECONSIDERATION AND
DENYING PETITIONER’S MOTION

v.
J. LIZARRAGA,

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Respondent.
(Doc. No. 23)

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No. 1:18-cv-01242-DAD-JLT (HC)

This matter is before the court on petitioner’s motion to set aside judgment, which the

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court will construe as a motion for reconsideration of the court’s November 7, 2019 order

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denying his petition for writ of habeas corpus. (Doc. No. 23.) For the reasons discussed below,

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petitioner’s motion will be denied.
BACKGROUND

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Petitioner Nerses Tashchyan is a state prisoner proceeding pro se and in forma pauperis

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with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter

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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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On June 20, 2019, the assigned magistrate judge issued findings and recommendations

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recommending that the petition be denied with prejudice due to petitioner’s failure to exhaust his

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claims by first presenting them to the state’s highest court and due to petitioner’s failure to state a
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cognizable claim for federal habeas relief. (Doc. No. 20.) On November 7, 2019, the

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undersigned adopted those findings and recommendations in full, dismissed the petition for writ

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of habeas corpus with prejudice, and directed the Clerk of the Court to close this case. (Doc. No.

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21.) Judgment was entered in accordance with that order. (Doc. No. 22.)

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On December 6, 2019, petitioner filed a motion to set aside judgment, citing Rule 60 of

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the Federal Rules of Civil Procedure, in which petitioner appears to be requesting reconsideration

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of the court’s order dismissing his petition. (Doc. No. 23.) Accordingly, the court will construe

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petitioner’s motion as a motion for reconsideration.

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LEGAL STANDARD
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any

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event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id.

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Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the

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interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of

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Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531

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F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking

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reconsideration under Rule 60, the moving party “must demonstrate both injury and

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circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and

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citation omitted).

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” and it “may not be used to

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raise arguments or present evidence for the first time when they could reasonably have been

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raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571
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F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in

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original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown”

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previously, “what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown” at the time the substance of the order which is objected to was considered.

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DISCUSSION
Petitioner moves for reconsideration of the court’s November 7, 2019 order (Doc. No. 21)
dismissing his petition for a writ of federal habeas corpus with prejudice. (Doc. No. 23.)

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First, petitioner contends that the court was mistaken when it determined that he had failed

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to exhaust his claims by first presenting them to the state’s highest court, and he asserts that this is

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the kind of oversight that Rule 60 is designed to correct. (Doc. No. 23 at 1.) Petitioner has

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attached a copy of the “filed” stamped copy of his habeas application to the California Supreme

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Court bearing case number S251968, which was filed with the Clerk of the California Supreme

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Court on October 15, 2018. (Doc. No. 23 at 1.)

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Contrary to petitioner’s assertion, the court’s determination that petitioner had failed to

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exhaust his claims by first presenting them to the state’s highest court was not based on a mistake or

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oversight by the court in not considering the fact that he filed a state habeas petition with the

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California Supreme Court. In fact, the findings and recommendations, which the court adopted in full

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in its November 7, 2019 order, referenced petitioner’s state habeas application. (See Doc. No. 20

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at 2) (“[Petitioner] filed another habeas petition in the California Supreme Court on October 15,

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2018, and that petition was denied on March 13, 2019.”). However, despite filing his habeas

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applications in the California Court of Appeal and the California Supreme Court, petitioner did not

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properly present his claims because, as the California Court of Appeal explained in its order denying

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petitioner’s application without prejudice, “[he] failed to show that he exhausted his remedy of filing

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a petition for writ of habeas corpus in the superior court.” (See Doc. No. 20 at 2 (emphasis added).)

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Thus, the court finds that there was no error or mistake in the its order dismissing petitioner’s habeas

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petition on the grounds that he failed to exhaust his claims by first properly presenting them to the

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state’s highest court.

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Second, and more importantly, without any supporting evidence or argument, petitioner

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asserts in conclusory fashion that the constitutional violations he asserted in his federal habeas

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petition are cognizable habeas claims and he should not have been denied habeas relief. (Doc.

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No. 23 at 1.) Petitioner had asserted three grounds for federal habeas relief in his petition filed

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with this court: (1) the trial court abused its discretion and violated petitioner’s due process rights

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under the Fourteenth Amendment of the United States Constitution when it relieved counsel

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without just cause; (2) ineffective assistance of counsel in violation of the Sixth Amendment of

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the United States Constitution; and (3) actual innocence of 1st degree murder due to dementia,

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lack of deliberation and thus factual innocence. (Doc. No. 23 at 5, 7, 8.)

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While not entirely clear from petitioner’s motion for reconsideration, to the extent

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petitioner believes that this court did not consider the merits of his federal habeas claim after

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determining that he had failed to exhaust his claims, petitioner is mistaken. Pursuant to 28 U.S.C.

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§ 2254(b)(2), the court considered the merits of each of petitioner’s asserted grounds and denied

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petitioner’s application for federal habeas relief on the merits and with prejudice

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“notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

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State.” (Doc. No. 20 at 9, 11.) Petitioner has not provided the court with any basis that would

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warrant reconsideration of its prior ruling.

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CONCLUSION
Because petitioner has not demonstrated that the court’s prior order was erroneous in any

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respect, the court finds no basis to grant the requested relief. Petitioner’s motion for

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reconsideration (Doc. No. 23) is therefore denied.

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IT IS SO ORDERED.

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Dated:

March 30, 2020
UNITED STATES DISTRICT JUDGE

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