Androshchuk v. Biter

Filing 40

ORDER signed by District Judge Morrison C. England, Jr on 10/10/2017; GRANTING 33 Motion for Reconsideration; ADOPTING IN FULL 29 Findings and Recommendations; GRANTING 11 Motion to Dismiss; ENTERING JUDGMENT for the respondent; DECLINING to issue the certificate of appealability. (cc USCA) (Washington, S) Modified on 10/11/2017 (Washington, S).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDUARD VLADIMIROV
ANDROSHCHUK,
Petitioner,

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v.

No. 2:15-cv-1204-MCE-AC P

ORDER

MARTIN BITER,
Respondent.

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Petitioner Eduard Vladimirov Androshchuk is a state prisoner proceeding pro se

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under 28 U.S.C. § 2254. Petitioner filed a petition for a writ of habeas corpus against

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Respondent Martin Biter on June 5, 2015. ECF No. 1. Thereafter, on March 10, 2016,

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Respondent filed a motion to dismiss, which—after numerous extensions—was fully

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briefed on January 27, 2017. See ECF Nos. 11 (Mot. to Dism.), 22 (Opp.), 27 (Reply).

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On March 17, 2017, the magistrate judge issued an order and findings and

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recommendations, ordering that M. Eliot Spearman, High Desert State Prison Warden,

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be substituted as Respondent in place of Martin Biter, and recommending that

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Respondent’s motion to dismiss be granted. ECF No. 29. The findings and

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recommendations notified the parties that objections were to be filed within ten (10) days

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of service of the document. Id. at 15. The parties were further notified that “[d]ue to
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exigencies in the court’s calendar, no extensions of time will be granted.” Id. Finally,

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Petitioner was also explicitly “informed that in order to obtain the district judge’s

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independent review and preserve issues for appeal, he need only identify the findings

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and recommendations to which he objects. . . . [he need not] reproduce his arguments

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on the issues.” Id.

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Having received no objections from either party, the Court adopted the findings

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and recommendations of the magistrate judge on March 31, 2017, granting

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Respondent’s motion to dismiss and entering judgment in his favor. Order, ECF No. 30.

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Subsequently, however, on April 10, 2017, Petitioner’s objections to the findings and

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recommendations were electronically filed. Petitioner specifically objects to “the F&R’s

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entire reasoning in denying Ground One.” Because those objections were not

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considered by the Court in its already issued order, Petitioner has now moved for

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reconsideration. Recon. Mot., ECF No. 33.

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Since this motion is seeking reconsideration of a final judgment and was timely

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filed, the Court will treat it as a Rule 59(e) motion. A court should be loath to revisit its

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own decisions unless extraordinary circumstances show that its prior decision was

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clearly erroneous or would work a manifest injustice. Christianson v. Colt Indus.

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Operating Corp., 486 U.S. 800, 817 (1988). This principle is embodied in the law of the

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case doctrine, under which “a court is generally precluded from reconsidering an issue

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that has already been decided by the same court, or a higher court in the identical case.”

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United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible,

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983 F.2d 152, 154 (9th Cir. 1993)). Nonetheless, in certain limited circumstances, a

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court has discretion to reconsider its prior decisions.

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While Rule 59(e) permits a district court to reconsider and amend a previous

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order, “the rule offers an ‘extraordinary remedy, to be used sparingly in the interests of

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finality and conservation of judicial resources.’” Kona Enter., Inc. v. Estate of Bishop,

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229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James William Moore, et al., Moore’s

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Federal Practice § 59.30(4) (3d ed. 2000)). Indeed, a district court should not grant a
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motion for reconsideration “absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d

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656, 665 (9th Cir. 1999) (citing School Dist. No. 1J v. AcandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993)). Mere dissatisfaction with the court’s order, or belief that the court is

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wrong in its decision, is not grounds for relief under Rule 59(e). Twentieth Century-Fox

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Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).

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Additionally, Local Rule 230(j) requires a party filing a motion for reconsideration

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to show the “new or different facts or circumstances claimed to exist which did not exist

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or were not shown upon such prior motion, or what other grounds exist for the motion.”

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Finally, motions for relief from judgment pursuant to Rule 59(e) are addressed to the

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sound discretion of the district court. Turner v. Burlington N. Santa Fe R.R., 338 F.3d

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1058, 1063 (9th Cir. 2003).

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Petitioner argues that he did not receive the findings and recommendations until

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March 24, 2017, and that he timely filed his written objections thereto nine days later on

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April 2. Recon. Mot. at 1-2. Petitioner has provided no documentation supporting his

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claim that he did not receive the findings and recommendations until March 24.

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Nevertheless, he has submitted with his motion a signed verification that purports to

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verify the information contained in his moving papers, which information is reasonably

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within his knowledge. Moreover, the Court understands that mail delivery to and from

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the prisons can be delayed and has no reason to believe Petitioner’s claimed delay of

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one week from the filing of the findings and recommendations to service on Petitioner is

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unbelievable. Therefore, because the Court did not previously consider Petitioner’s

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timely filed objections, the Court hereby GRANTS Petitioner’s motion for reconsideration,

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ECF No. 33.

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In light of that ruling, the Court has reconsidered its March 31 Order adopting the

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magistrate judge’s findings and recommendations. In accordance with the provisions of

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28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the Court has conducted a de novo review
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of this case. In addition to the parties’ briefing and other relevant documents in the file,

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the Court has specifically reviewed Petitioner’s objections (ECF No. 32). Having

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carefully reviewed the entire file, the Court continues to find the findings and

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recommendations to be supported by the record and by proper analysis. Accordingly, it

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is hereby ordered that:

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1.

Petitioner’s Motion for Reconsideration, ECF No. 33, is GRANTED.

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2.

The findings and recommendations filed March 17, 2017 (ECF No. 29), are

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ADOPTED IN FULL;

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3.

Respondent’s motion to dismiss (ECF No. 11) is GRANTED and judgment

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is entered for respondent.

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4.

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declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.

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IT IS SO ORDERED.

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For the reasons outlined in the findings and recommendations, this Court

Dated: October 10, 2017

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