Maling v. Johnson et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/5/2017 RECOMMENDING petitioner's 31 "Motion to make additional findings and amend the judgment" be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EZRA DAVID GIPAN MALING,
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No. 2:16-cv-1263-JAM-EFB P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
JEH CHARLES JOHNSON, et al.,
Respondents.
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Petitioner brought this action for writ of habeas corpus seeking release from immigration
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detention. The court denied the petition on July 17, 2017. ECF No. 29. On July 31, 2017,
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petitioner filed a “Motion to Make Additional Findings and Amend the Judgment.” ECF No. 31.
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For the reasons that follow, the motion must be denied.
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A motion seeking relief from a judgment is governed by either Federal Rule of Civil
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Procedure 59(e) or 60(b), depending on when the motion is filed. Cent. Produce El Jibarito v.
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Luna Commer. Corp., 880 F. Supp. 2d 282, 285 (D.P.R. 2012). If the motion is filed within 28
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days of entry of judgment, Rule 59(e) governs; otherwise, Rule 60(b) governs. Id.; see also
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United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 956 (9th Cir. 2006) (noting that
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Rule 59(e) controls if the motion is brought within the time limit provided by Rule 59 (which,
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since 2009, has been 28 days)). Petitioner’s motion was brought within 28 days of entry of
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judgment here; accordingly Rule 59(e) controls. That rule provides simply: “A motion to alter or
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amend a judgment must be filed no later than 28 days after the entry of the judgment.”
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Reconsideration of a judgment under Rule 59(e) is an extraordinary remedy that is only
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rarely appropriate. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). The court
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has discretion to change the judgment if: (1) the judgment rests on a manifest error of law or fact;
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(2) newly discovered or previously unavailable evidence requires reconsideration; (3) manifest
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injustice would otherwise result; or (4) an intervening change in controlling law requires altering
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the judgment. Id.
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Petitioner argues that the judgment should be reconsidered because: (1) the court failed to
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accord him the deference due to a pro se litigant; (2) the court refused to consider supplemental
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materials he submitted after the undersigned recommended that the petition be denied; (3)
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transcripts of his recent bond hearing constitute new evidence; (4) petitioner is a layman who is
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less capable of presenting competent briefs; and (5) the court did not review the record carefully
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enough. ECF No. 31. Petitioner does not make a showing that would justify reconsideration of
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the judgment. He has not shown an error of law or fact, a change in the law, or a manifest
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injustice. Nor has he shown that the more recent bond transcripts would change the court’s
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analysis of his claims.
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Accordingly, it is hereby RECOMMENDED that petitioner’s July 31, 2017 “Motion to
Make Additional Findings and Amend the Judgment” (ECF No. 31) be DENIED.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. Failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991). In his objections petitioner may address whether a certificate of appealability should issue
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in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
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2254 Cases (the district court must issue or deny a certificate of appealability when it enters a
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final order adverse to the applicant).
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DATED: September 5, 2017.
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