Stockton, Jr. v. People of the State of California, et al.

Filing 34

ORDER signed by Judge Kimberly J. Mueller on 5/22/2015 DENYING petitioner's 24 motion for reconsideration and a 26 certificate of appealability; and DENYING the 27 motion for appointment of counsel, without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT JOHN STOCKTON, JR.,

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Petitioner,

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No. 2:13-cv-02413-KJM-KJN

v.

ORDER

GREG LEWIS, Warden,

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Respondent.

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On March 30, 2015, the court issued an order adopting the magistrate judge’s

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findings and recommendations in full, granting respondent’s motion to dismiss, and denying the

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motion for a certificate of appealability. Order Mar. 30, 2015, ECF No. 22; Findings &

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Recommendations, ECF No. 18. The court entered judgment on the same day. ECF No. 23. On

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April 10, 2015, petitioner Robert John Stockton, Jr. filed a motion for reconsideration, ECF No.

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24,1 a motion for a certificate of appealability, ECF No. 26, a motion to appoint counsel, ECF No.

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27, and a notice of appeal, ECF No. 25. Respondents opposed the motion for reconsideration on

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May 5, 2015. ECF No. 32.

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Stockton’s motion actually seeks leave to file a motion for reconsideration and attaches a
proposed motion. Federal Rule of Civil Procedure 59(e) allows a litigant to file “[a] motion to
alter or amend a judgment . . . no later than 28 days after the entry of the judgment.” The court
therefore grants Stockton’s request for leave to file a motion for reconsideration.
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I.

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RECONSIDERATION
This court retains jurisdiction to consider this motion. See Fed. R. App. P.

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4(a)(4)(B)(i). Because the court denied Stockton’s previous application for a certificate of

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appealability, it construes his motion here as a request for reconsideration of its order not to issue

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that certificate. See App. Cert. Appealability, ECF No. 20; Order Mar. 30, 2015, at 2 (denying

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application). Furthermore, because Stockton’s motion was filed within twenty-eight days of the

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court’s order and entry of judgment, the court construes it as one brought under Federal Rule of

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Civil Procedure 59(e). See Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892,

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898–99 (9th Cir. 2001).

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In general, a motion to reconsider founded on Rule 59(e) may be granted (1) to

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correct “manifest errors of law or fact,” (2) to present new, previously unavailable evidence,

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(3) to prevent manifest injustice, or (4) to account for “an intervening change in controlling law.”

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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir.2011). Here, Stockton essentially

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argues for reconsideration to correct errors of law or fact and prevent manifest injustice, but his

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motion relies on arguments and facts he presented in opposition to the motion to dismiss, matters

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the magistrate judge and the undersigned reviewed before issuing previous orders: Stockton

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primarily disputes the state courts’ “one-sided evidentiary analysis,” e.g., Mot. Recons. 3, and

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argues the court disregarded his arguments of actual innocence, id. at 5–6, and prosecutorial

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misconduct, id. at 6–7. The court took each of these arguments into consideration before issuing

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its previous order. Neither has Stockton described any manifest injustice. The motion is

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therefore denied.

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II.

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MOTION TO APPOINT COUNSEL
Stockton requests the court appoint counsel, requesting relief both from this court

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and from the Ninth Circuit Court of Appeals. Mot. Appoint Counsel 1, ECF No. 27. Because

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Stockton has filed a notice of appeal, the court denies his motion to appoint counsel without

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prejudice. See Goff v. Salinas, No. 11-3410, 2013 WL 1309457, at *1 (E.D. Cal. Apr. 1, 2013)

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(denying motion to appoint counsel in similar circumstances) (citing Fed. R. Civ. P. 62.1 and

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Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1346 (9th Cir. 1988)).
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III.

CONCLUSION
Petitioner’s motion for reconsideration and for a certificate of appealability is

DENIED. The motion for appointment of counsel is DENIED without prejudice.
IT IS SO ORDERED.
DATED: May 22, 2015.

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UNITED STATES DISTRICT JUDGE

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