Sharonoff v. Warden

Filing 106

ORDER signed by District Judge Troy L. Nunley on 9/19/2018 DENYING 96 Request for Clarification of 3/9/2018 judgment, construed as a request to alter or amend judgment. (cc USCA) (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ALLEN SHARONOFF,

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No. 2:13-cv-00794-TLN-AC

Petitioner,
v.

ORDER

WARDEN,
Respondent.

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This matter is before the Court on Petitioner Kenneth Allen Sharonoff’s (“Petitioner”) two

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requests for clarification of this Court’s order and judgment issued March 9, 2018. (ECF Nos. 96,

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97.) The Court’s March 9, 2018 Order adopted the findings and recommendations of the

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magistrate judge issued May 16, 2017 and July 18, 2017, and denied Petitioner’s motion to

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amend. (ECF No. 94 at 2.) Petitioner filed his requests and then noticed an appeal, (ECF No.

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98), which the Ninth Circuit is holding in abeyance until this Court rules on whether either of

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Petitioner’s requests constituted one of the motions listed in Federal Rule of Appellate Procedure

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4(a)(4) and, if so, whether they should be granted or denied. (ECF No. 105 at 1–2.)

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For the reasons discussed below, the Court determines Petitioner’s first request for

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clarification (ECF No. 96) constitutes one of the motions listed in Rule 4(a)4, a motion pursuant

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to Federal Rule of Civil Procedure 59(e), and hereby DENIES said motion (ECF No. 96). The

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Court determines that Petitioner’s second request (ECF No. 97) does not constitute one of said
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motions.

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I.

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Petitioner filed his first request within 12 days of entry of judgment and asked: (1)

PETITIONER’S FILINGS

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whether the denial of his petition was with or without prejudice; (2) whether he has a right to

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object to the order, and (3) whether the case is still pending before the court. (ECF No. 96 at 1.)

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Petitioner also states the basis on which he would object if permitted to do so, claiming the court

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stenographer’s actions during trial violated his constitutional rights. (ECF No. 96 at 1.)

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Petitioner’s second request asks only for clarification about whether the judgment was with or

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without prejudice. (ECF No. 97 at 1.)

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Given the timing and content of Petitioner’s first request for clarification, the Court

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construes the filing as a motion to alter or amend the judgment pursuant to Federal Rule of Civil

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Procedure 59(e). See Fed. R. Civ. Proc. 59(e) (stating motion to alter or amend judgment must be

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filed no later than twenty-eight days after entry of judgment); see Bright v. Bechtel Petroleum,

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Inc., 780 F.2d 766, 772 (9th Cir. 1986) (construing motion for clarification as motion to alter or

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amend judgment under Rule 59(e)). Accordingly, the Court will consider whether its March 2018

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judgment should be reopened. See Defenders of Wildlife v. Bernal, 204 F.3d 920, 928–29 (9th

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Cir. 2000) (stating Rule 59(e) provides court with discretion to reopen judgment, amend findings,

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or make new findings). The Court will also clarify its recent decisions.

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II.

RELEVANT PROCEDURAL HISTORY

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Petitioner’s confusion appears to stem in part from the fact that the Court denied his April

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2013 petition (ECF No. 1) and his September 2016 motion to amend (ECF No. 86) on March 9,

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2018 (ECF Nos. 93, 94), and the subsequent judgment in this action (ECF No. 95) was issued at

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the same time. To clarify: On May 16, 2017, the magistrate judge recommended that the petition

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(ECF No. 1) be denied because: (1) the state court’s denial of Petitioner’s claims was not

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objectively unreasonable, and (2) Petitioner had not established that any of his constitutional

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rights had been violated. (ECF No. 84 at 18–19.) On July 18, 2017, the magistrate judge also

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recommended that Petitioner’s motion to amend, (ECF No. 86), be denied because none of the

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claims Petitioner moved to add to the petition were timely. (ECF No. 89 at 3–5.) Petitioner filed
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objections to these findings by the magistrate judge. (ECF Nos. 88, 90.)
On March 9, 2018, this Court reviewed Petitioner’s filings and the magistrate judge’s

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findings and recommendations de novo. (ECF Nos. 93, 94.) The Court adopted the magistrate

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judge’s recommendation and denied Petitioner’s motion to amend, (ECF No. 94 at 2), and denied

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Petitioner’s petition, (ECF No. 93 at 2). Further, this Court opted not to grant Petitioner a

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certificate of appealability to appeal the decision in the Ninth Circuit. Id.; see 28 U.S.C.

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§ 2253(c)(3) (stating certificate of appealability may only issue where petitioner makes

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substantial showing of denial of constitutional right). Judgment was entered at that time as well.

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(ECF No. 95.)
CLARIFICATION OF THE COURT’S ORDERS

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III.

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Petitioner requests clarification about whether the Court’s judgment was with or without

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prejudice. (ECF No. 97 at 1.) The denial of Petitioner’s petition is on the merits pursuant to

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statute. ECF No. 84 at 1; see 28 U.S.C. § 2254(d) (stating writ may not be granted with respect to

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claim adjudicated on merits in state court proceedings unless the state court decision was contrary

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to or involved an unreasonable application of clearly established federal law or was based on

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unreasonable determination of facts in light of evidence presented). Thus, the dismissal of this

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case is with prejudice. The Court declined to issue a certificate of appealability because

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Petitioner has not shown that “reasonable jurists could debate whether (or, for that matter, agree

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that) the petition should have been resolved in a different manner or that the issues presented

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were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

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484 (2000) (internal citation omitted) (internal quotation marks omitted). The case was closed.

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IV.

MOTION TO AMEND OR ALTER JUDGMENT

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The Court will reconsider this judgment in light of Petitioner’s request, (ECF No. 96),

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which the Court construes as a motion to amend or alter judgement under Rule 59(e). A Rule

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59(e) motion is an extraordinary remedy to be used sparingly. Kona Enterprises, Inc. v. Estate of

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Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). A district court may only grant a

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Rule 59(e) motion “if it is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th
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Cir. 2014) (citation omitted) (emphasis in original).

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Petitioner’s assertion that the trial stenographer’s record of actions during his trial “could

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be disputed by a trier of court” and that “said actions where [sic] in violation of law and or cased

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[sic] doubt on truth and fairness of Superior Court Order and sentence of Guilty for murder 187

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resulting in denial of constitutional rights,” (ECF No. 96) (brackets added), is not newly

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discovered evidence. Petitioner’s assertion is simply an unsupported statement, and it is one

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which alleges no viable violation of constitutional right. Furthermore, it fails to allege a

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cognizable claim that the Court’s decision in this case was clear error or that there has been an

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intervening change in any controlling law in this matter since the Court’s entry of judgment.

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Accordingly, the Court hereby denies Petitioner’s motion to alter or amend the judgment.
IT IS HEREBY ORDERED that Petitioner’s request for clarification of the Court’s March

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9, 2018 orders and judgment (ECF No. 96), construed as a request to alter or amend judgment

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under Federal Rule of Civil Procedure 59(e), is DENIED.

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IT IS SO ORDERED.

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Dated: September 19, 2018

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Troy L. Nunley
United States District Judge

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