Cepeda v. Attorney General of the State of California

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 5/10/2017 DENYING 7 Motion for Reconsideration. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID DANIEL CEPEDA,

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Petitioner,

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v.

No. 2:14-cv-2080 AC P

ORDER

ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,
Respondent.

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Petitioner is a former state prisoner proceeding without counsel. On September 8, 2014,

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he filed a petition for writ of corum nobis pursuant to 28 U.S.C. § 1651. ECF No. 1. Petitioner

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consented to magistrate judge jurisdiction (ECF No. 3) and, on April 30, 2015, the court entered

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an order dismissing the petition without prejudice to refilling in state court. ECF No. 5. On

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January 3, 2017, petitioner filed a motion for reconsideration of that dismissal. ECF No. 7. The

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court will deny the motion for reconsideration as untimely.

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A motion for reconsideration is construed as a motion to alter or amend judgment

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pursuant to Fed. R. Civ. P. 59(e) when filed within the time limit set by that rule. United States v.

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Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992). A motion to alter or amend judgment must

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be filed no later than twenty-eight days after judgment is entered. Fed. R. Civ. P. 59(e).

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Judgment in this case was entered on April 30, 2015 (ECF No. 6) and, as such, petitioner is well
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past the twenty-eight day limit. Accordingly, the court will instead construe the instant motion as

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a motion for reconsideration pursuant to Fed. R. Civ. P. 60(b).

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The motion is also untimely under Fed. R. Civ. P. 60(b), however. The Federal Rules of

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Civil Procedure provide that “[a] motion under Rule 60(b) must be made within a reasonable time

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. . . no more than a year after the entry of the judgment or order or the date of the proceeding.”

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Fed. R. Civ. P. 60(c)(1). The motion exceeds that deadline.

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The court would not grant petitioner’s motion even if it were timely. The court previously

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dismissed the petition after finding that coram nobis was not available to attack a state court

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conviction. ECF No. 5 at 2. Petitioner has failed to offer any legal argument which causes the

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court to question the validity of its previous finding.

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Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s motion for reconsideration (ECF No. 7) is denied.

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DATED: May 10, 2017

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