Jonathan Hanks v. Sexton

Filing 42

ORDER DENYING 39 Motion for Reconsideration; ORDER DENYING 41 Motion for Extension of Time signed by Chief Judge Lawrence J. O'Neill on 4/29/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN HANKS,

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Petitioner,

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No. 1:18-cv-00202-LJO-SKO (HC)
ORDER DENYING MOTION FOR
RECONSIDERATION [Doc. No. 39]

v.
MARTIN BITER, Warden,

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ORDER DENYING MOTION FOR
EXTENSION OF TIME [Doc. No. 41]

Respondent.

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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 petition was filed on February 8, 2018. On May 14, 2018, Respondent filed a motion

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to dismiss the petition for violating the statute of limitations. On November 20, 2018, the

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Magistrate Judge entered Findings and Recommendations to grant the motion to dismiss the

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petition. (Doc. No. 33.) Petitioner filed objections on January 30, 2019. (Doc. No. 36.) On

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February 19, 2019, the undersigned adopted the Findings and Recommendations, granted

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Respondent’s motion to dismiss the petition, and entered judgment against Petitioner. (Doc. Nos.

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37, 38.)

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On February 28, 2019, Petitioner filed a motion for reconsideration. (Doc. No. 39.) He

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also filed a motion for extension of time to file a motion for certificate of appealability on March

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21, 2019. (Doc. No. 41.)
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DISCUSSION

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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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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to

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show the “new or different facts or circumstances claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” Motions to

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reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825

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F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To

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succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to

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reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp.

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656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir.

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1987).

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Here, petitioner fails to meet the requirements for granting a motion for reconsideration:

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He has not shown “mistake, inadvertence, surprise, or excusable neglect;” he has certainly not

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shown the existence of either newly discovered evidence or fraud; he has not established that the

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judgment is either void or satisfied; and, finally, petitioner has not presented any other reasons

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justifying relief from judgment. Moreover, pursuant to the Court’s Local Rules, petitioner has not

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shown “new or different facts or circumstances claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” Local Rule 230(j).

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Petitioner states he submitted a motion to amend the petition in his objections and that the

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Court failed to file the motion to amend. The Court has reviewed the docket and the motion was

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submitted as an attachment to the objections with additional exhibits. Thus, it was not filed as a

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separate motion. The Court reviewed the pleading along with the exhibits as objections. Contrary
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to Petitioner’s assertions, the Court did not fail to consider the arguments set forth therein.

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Petitioner argues he is actually innocent because there was no evidence that he was the

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“actual/direct perpetrator/slayer/killer.” (Doc. No. 36 at 17.) As Petitioner acknowledges

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however, he was convicted under an aiding and abetting theory of culpability. (Doc. No. 36 at

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17.) The exhibits he submitted bear this out. In the trial court’s instructions, the jury was advised

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that “[a] person aids and abets the commission of a crime when he or she (1) with knowledge of

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the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing or

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encouraging or facilitating the commission of the crime, and (3), by act or advice aids, promotes,

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encourages, instigates the commission of the crime.” (Doc. No. 36 at 72.) Further, the jury was

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instructed that each principal in a crime is “equally guilty,” and principals include “[t]hose who

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directly and actively commit the act constituting the crime, or (2), those who aid and abet the

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commission of the crime.” (Doc. No. 36 at 72.) Petitioner submits no “new reliable evidence –

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whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

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physical evidence – that was not presented at trial,” to show actual innocence. Schlup v. Delo,

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513 U.S. 298, 329 (1995). As discussed by the Magistrate Judge, Petitioner’s claims concerning

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the theories used by the jury to find him guilty of the murder can be characterized as claims of

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legal innocence, not factual innocence. Petitioner was found guilty of murder as a principal, and

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he submits no evidence demonstrating his innocence. He merely disagrees with the jury’s verdict.

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In sum, Petitioner does not meet the Schlup threshold and fails to establish actual innocence as an

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exception to the statute of limitations.

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Petitioner has also filed a motion for extension of time to file a certificate of appealability.

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(Doc. No. 41.) The Court has already declined to issue a certificate of appealability. (Doc. No.

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37.) Furthermore, as discussed above, contrary to Petitioner’s assertions, the Court considered the

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arguments and exhibits presented in his objections. Thus, the motion is moot.

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ORDER

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Accordingly, it is HEREBY ORDERED:

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1) Petitioner’s motion for reconsideration (Doc. 39) is DENIED; and

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2) Petitioner’s motion for extension of time is DENIED as moot.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 29, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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