Lee v. Matevousian

Filing 24

ORDER DENYING Petitioner's 23 Motion for Reconsideration signed by District Judge Dale A. Drozd on 12/5/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO ANTON LEE,

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No. 1:18-cv-00234-DAD-EPG

Petitioner,
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION

v.
ANDRE MATEVOUSIAN,

(Doc. No. 23)
Respondent.

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Petitioner Mario Anton Lee is a federal prisoner proceeding pro se with a petition for writ

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of habeas corpus purportedly brought pursuant to 28 U.S.C. § 2241. On August 15, 2018, the

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assigned magistrate judge issued findings and recommendations, recommending that the petition

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be dismissed for lack of jurisdiction because petitioner failed to satisfy the criteria to bring a

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§ 2241 habeas petition pursuant to the savings clause of 28 U.S.C. § 2255(e). (Doc. No. 19.) On

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November 19, 2018, the undersigned adopted those findings and recommendations in full and

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dismissed the petition. (Doc. No. 21.) On December 3, 2018, petitioner moved for

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reconsideration of that order.

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Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may

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relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1)

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mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief

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from the operation of judgment.” Relief under Rule 60 “is to be used sparingly as an equitable
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remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances

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. . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted) (addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must

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demonstrate both injury and circumstances beyond his control . . ..” Id. (internal quotation marks

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and citation omitted). Further, Local Rule 230(j) requires, in relevant part, that plaintiff show

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

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

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circumstances were not shown” at the time the substance of the order which is objected to was

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considered.

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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).

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Here, in his motion for reconsideration petitioner again argues that his petition should not

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have been dismissed because he is alleging his actual innocence as to the offense of conviction.

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As the court’s prior order made clear, however, a petition under § 2241 is available under the

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“escape hatch” of § 2255 only when a petitioner “(1) makes a claim of actual innocence, and (2)

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has not had an ‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464

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F.3d 895, 898 (9th Cir. 2006) (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003)).

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Even if petitioner could satisfy the first prong of this test, he has never provided any explanation

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as to why his claim of actual innocence could not have been made in his first motion for relief

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under § 2255. See Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (In determining

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whether a petitioner had such an unobstructed procedural shot, the court evaluates (1) whether the

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legal basis for the claim did not arise until after the petitioner exhausted his direct appeal and first

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§ 2255 motion and (2) whether the law changed in any way relevant to the claim after the first §
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2255 motion.) Absent such an explanation, the court finds that petitioner has not satisfied his

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burden of showing that he did not have an unobstructed procedural shot at presenting his actual

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innocence claim in the § 2255 motion he filed with the sentencing court.

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For these reasons, petitioner’s motion for reconsideration (Doc. No. 23) is denied.
IT IS SO ORDERED.
Dated:

December 5, 2018
UNITED STATES DISTRICT JUDGE

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