Conlan v. Quay

Filing 19

ORDER signed by District Judge Kimberly J. Mueller on 8/3/18 ORDERING because petitioner has cited no valid basis to reconsider this court's dismissal for lack of jurisdiction, his 16 motion for reconsideration is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA CONLAN,
Petitioner,

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v.

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No. 2:17-cv-01466-KJM-EFB

ORDER

QUAY,
Respondent.

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Petitioner, proceeding pro se, petitioned for a writ of habeas corpus under 28

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U.S.C. § 2254. ECF No. 1 (June 9, 2017). On March 14, 2018, the magistrate judge

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recommended dismissing the matter for lack of jurisdiction, explaining petitioner’s challenge to

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his conviction should have been brought as a 28 U.S.C. § 2255 petition in the Texas sentencing

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court rather than as a § 2241 petition in this court. See Findings and Recommendations (“F&R”),

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ECF No. 10, at 8 (“Because petitioner has not shown that a motion under § 2255 is inadequate or

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ineffective to present his claims, this court lacks jurisdiction to consider this petition under 28

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U.S.C. § 2241.”). On March 30, 2018, this court adopted the findings and recommendations and

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dismissed the petition for lack of jurisdiction. Dismissal Order, ECF No. 13, at 1-2.

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Petitioner now moves to reconsider that dismissal order under Federal Rule of

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Civil Procedure 59(e). Mot., ECF No. 16 (April 30, 2018). Because petitioner filed his motion

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on April 30, 2018, more than 28 days after the order he asks the court to consider, it is properly

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construed as a Rule 60(b) motion. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr.

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Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (explaining motions to reconsider filed after timeline

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under Rule 59(e) are automatically construed as Rule 60(b) motions). Rule 60(b) permits a court

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to relieve a party from a final judgment for several reasons, including mistake, inadvertence,

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surprise, excusable neglect, newly discovered evidence, fraud, voidness, satisfaction, or “any

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other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6). Whether to grant Rule 60(b) relief

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is a matter of discretion. Lemoge v. United States, 587 F.3d 1188, 1191-92 (9th Cir. 2009).
Here, petitioner argues reconsideration is warranted because the dismissal was

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decided before the court could consider newly discovered evidence. Mot. at 4-6. Specifically, he

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argues that just eight days before the dismissal order issued, he had filed a motion to amend his

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petition to add new evidence that would “undermine[] all proof of guilt” and trigger the “escape

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hatch” exception, which in turn would give this court jurisdiction over his habeas petition. Id; see

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also Mot. to Amend, ECF No. 12 (Mar. 22, 2018); Dismissal Order at 2 n.2 (denying motion to

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amend “[b]ecause the court lacks jurisdiction over this action for the reasons stated in the findings

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and recommendations”).

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Plaintiff has not met his burden to justify reconsideration. “The overwhelming

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weight of authority is that the failure to file documents in an original motion or opposition does

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not turn the late filed documents into ‘newly discovered evidence.’” Sch. Dist. No. 1J,

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Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citation and quotations

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omitted) (listing cases). Moreover, petitioner has neither described the alleged new evidence nor

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explained when he obtained it. See generally Mot. He also has not explained how his new

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evidence shows, by a preponderance of the evidence, that no reasonable juror would have

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convicted him, as is necessary to trigger the Rule 60(b) escape hatch. See Redfield v. United

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States, 315 F.2d 76, 83 (9th Cir. 1963). The court does not obtain jurisdiction over a § 2241

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application merely because petitioner argues, without detail, that there is “new evidence”
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undermining his guilt. See Mot. at 4. It appears, as the magistrate judge suggests, that the proper

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basis for this argument would be a § 2255(h)(1) petition in the sentencing court. See F&R at 7

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(explaining § 2255(h) is the proper procedure to challenge convictions based on new evidence).

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Because petitioner has cited no valid basis to reconsider this court’s dismissal for

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lack of jurisdiction, his motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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This resolves ECF No. 16.

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DATED: August 3, 2018.

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UNITED STATES DISTRICT JUDGE

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