Alford v. Shasta County Superior Court

Filing 23

ORDER signed by Judge John A. Mendez on 8/15/11 ORDERING that petitioner's motion for reconsideration 22 is denied. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS T. ALFORD,

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Petitioner,

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No. CIV S-10-1383 JAM DAD P

vs.
SHASTA COUNTY
SUPERIOR COURT,

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Respondent.
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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On February 11, 2011, the court dismissed the petition

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without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals

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authorizing petitioner to file a second or successive petition. On the same day, the court entered

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judgment and closed the case. Petitioner has filed a motion for reconsideration in light of the

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United States Supreme Court recent decision in Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289

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(2011).

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As an initial matter the court notes that petitioner’s motion for reconsideration is

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untimely. Under Rule 59(e), a party must file a motion to alter or amend a judgment “no later

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than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). See also Rule 12, Rules

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Governing Section 2254 Cases. Here, the court entered judgment on February 11, 2011. Even
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applying the mailbox rule, petitioner did not file his motion until March 30, 2011, well after the

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28-day deadline to file such a motion had expired.

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Moreover, even if petitioner had timely filed his motion, he is not entitled to

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relief. The Ninth Circuit has held that “[a] motion for reconsideration under Rule 59(e) ‘should

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not be granted, absent highly unusual circumstances, unless the district court is presented with

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newly discovered evidence, committed clear error, or if there is an intervening change in

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controlling law.’” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)

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(quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

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Here, petitioner argues that the Supreme Court’s recent decision in Skinner is a

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change in controlling law. To the extent that petitioner believes Skinner effected the outcome of

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the instant case, he is in error. In Skinner, the Supreme Court merely held that a convicted state

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prisoner may seek DNA testing of crime scene-evidence by way of a civil rights action brought

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pursuant to 42 U.S.C. § 1983 and that success in such an action did not necessarily imply the

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invalidity of the prisoner’s conviction and was therefore not Heck-barred. 131 S. Ct. at 1298-99.

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The Supreme Court’s decision in Skinner has no effect on petitioner’s ability to bring a second or

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successive petition in the district court. Under controlling law, before petitioner may file a

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second or successive petition in the district court, “the applicant shall move in the appropriate

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court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.

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§ 2244(b)(3)(A).

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To the extent petitioner argues that this court should re-open this case and allow

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him to proceed with his claim seeking DNA testing as if this action were a civil rights case, he is

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again in error. Petitioner is advised that this habeas corpus action is now closed. If petitioner

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wishes to proceed with his claim for DNA testing in a civil rights action, he will need to file a

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civil rights complaint as required by Rule 3 of the Federal Rules of Civil Procedure. He will also

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be required to either pay the required filing fee ($350.00) or file an application requesting leave

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to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915(a).
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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for

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reconsideration is denied.

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DATED: August 15, 2011

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/s/ John A. Mendez

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UNITED STATES DISTRICT JUDGE

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