Barger v. CDCR et al

Filing 10

ORDER DENYING Motion for Relief From Judgment 9 , signed by District Judge Dale A. Drozd on 12/20/2017. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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No. 1:17-cv-01066-DAD-MJS

Petitioner,
v.

ORDER DENYING MOTION FOR RELIEF
FROM JUDGMENT

CDCR and KERN VALLEY STATE
PRISON,

(Doc. No. 9)

Respondents.
Petitioner is a state prisoner who was proceeding pro se with a petition for a writ of habeas

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corpus under 28 U.S.C. § 2254. On November 17, 2017, this court issued an order adopting the

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findings and recommendations of the assigned magistrate judge, dismissing the petition as

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successive, and, to the extent petitioner sought to state civil rights claims, dismissing those claims

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without prejudice to petitioner bringing an appropriate action under 42 U.S.C. § 1983. (Doc. No.

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7.) Petitioner filed a motion for relief from judgment on December 1, 2017, which the court

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interprets as a motion brought under Rule 59 of the Federal Rules of Civil Procedure, in which he

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asserts that this court lacks jurisdiction over this case. (Doc. No. 9.)

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Petitioner’s assertion provides no basis for reconsideration of the court’s prior order. This

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court lacks jurisdiction to consider successive habeas petitions that have not yet been authorized

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by the Ninth Circuit Court of Appeals. Jones v. Ryan, 733 F.3d 825, 838 (9th Cir. 2013).

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Therefore, even if the court lacked jurisdiction for the reasons petitioner asserts, the judgment of
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the court would have been the same: petitioner’s habeas action would have been dismissed,

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because this court had no jurisdiction to consider a successive petition. Therefore, there is

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nothing to alter or amend in the judgment. See Fed. R. Civ. P. 59(e); Spirtos v. Allstate Ins. Co.,

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No. CV 02-8798-RGK (AIWx), 2004 WL 5803850, at *1 (C.D. Cal. June 21, 2004) (noting a

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motion under Rule 59 “must seek a substantive change that would result in a substantive

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alteration of the judgment rather than just a clerical correction or change in a purely procedural

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matter”).

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Accordingly, petitioner’s December 1, 2017 motion for relief from judgment (Doc. No. 9)
is denied.
IT IS SO ORDERED.
Dated:

December 20, 2017
UNITED STATES DISTRICT JUDGE

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