Guitierrez v. Spearman

Filing 12

ORDER by Magistrate Judge Nandor J. Vadas denying 11 Motion to Alter or Amend Judgment. (njvlc1, COURT STAFF) (Filed on 8/21/2014)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 EUREKA DIVISION 6 7 ROBERTO MORALES GUITIERREZ, Petitioner, 8 9 vs. ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT MARION E. SPEARMAN, Respondent. 11 For the Northern District of California United States District Court 10 No. C 14-0861 NJV (PR) (Doc. 11.) / 12 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 13 pursuant to 28 U.S.C. § 2254. The Court entered judgment on July 17, 2014. (Doc. 10.) 14 On August 4, 2014, Petitioner filed a motion to alter or amend the judgment pursuant to 15 Fed. R. Civ. P. 59(e). (Doc. 11.) 16 A motion to alter or amend judgment under Rule 59 must be made no later than 17 twenty-eight days after entry of judgment. See Fed. R. Civ. P. 59(e) (effective Dec. 1, 18 2009). A motion for reconsideration under Rule 59(e) "'should not be granted, absent 19 highly unusual circumstances, unless the district court is presented with newly discovered 20 evidence, committed clear error, or if there is an intervening change in the law."' McDowell 21 v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). 22 Evidence is not newly discovered for purposes of a Rule 59(e) motion if it was 23 available prior to the district court's ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th 24 Cir. 2011) (affirming district court's denial of habeas petitioner's motion for reconsideration 25 where petitioner's evidence of exhaustion was not "newly discovered" because petitioner 26 was aware of such evidence almost one year prior to the district court's denial of the 27 petition). 28 A district court does not commit clear error warranting reconsideration when the 1 question before it is a debatable one. See McDowell, 197 F.3d at 1256 (district court did 2 not abuse its discretion in denying reconsideration where question whether it could enter 3 protective order in habeas action limiting Attorney General's use of documents from trial 4 counsel's file was debatable). 5 Courts construing Rule 59(e), have noted that a motion to reconsider is not a vehicle 6 permitting the unsuccessful party to "rehash" arguments previously presented, or to present 7 "contentions which might have been raised prior to the challenged judgment." Costello v. 8 United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991). These holdings "reflect[] district 9 courts' concerns for preserving dwindling resources and promoting judicial efficiency." Id. Petitioner was sentenced on December 19, 1997. Court records indicate that 11 For the Northern District of California United States District Court 10 Petitioner filed a previous petition regarding the same conviction, Gutierrez v. Galza, 01- 12 20126 JF, that was denied as untimely on April 11, 2002. The Ninth Circuit denied an 13 appeal on February 26, 2003. In the present case, Petitioner attempted to bring a 14 successive petition. In moving for reconsideration, Petitioner relies on 28 U.S.C. 15 § 2244(b)(2), which provides in relevant part that “[a] claim presented in a second or 16 successive habeas corpus application under section 2254 that was not presented in a prior 17 application shall be dismissed unless . . . [] the factual predicate for the claim could not 18 have been discovered previously through the exercise of due diligence; and (ii) the facts 19 underlying the claim, if proven and viewed in light of the evidence as a whole, would be 20 sufficient to establish by clear and convincing evidence that, but for constitutional error, no 21 reasonable factfinder would have found the applicant guilty of the underlying offense.” 22 Petitioner, however, ignores Section (b)(3)(A) of the statute, which provides that “[b]efore a 23 second or successive application permitted by this section is filed in the district court, the 24 applicant shall move in the appropriate court of appeals for an order authorizing the district 25 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). As Petitioner has not moved 26 for such an order from the Ninth Circuit, this case was dismissed. Petitioner presents no 27 new arguments in his motion to alter or amend the judgment, therefore it is denied. 28 // 2 1 CONCLUSION 2 Petitioner’s motion to alter or amend the judgment (Docket No. 11) is DENIED. 3 Because reasonable jurists would not find the result here debatable, a certificate of 4 appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) 5 (standard for COA). 6 7 8 IT IS SO ORDERED. Dated: August 21, 2014. NANDOR J. VADAS United States Magistrate Judge 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 EUREKA DIVISION 5 6 7 11 For the Northern District of California United States District Court 10 CERTIFICATE OF SERVICE Petitioner, 8 9 No.1:14-CV- 0861 NJV ROBERTO MORALES GUITIERREZ v. MARION E. SPEARMAN, Respondent. / 12 13 14 15 16 17 18 I, the undersigned, hereby certify that on August 21, 2014, I served a true and correct copy of the attached by placing said copy in a postage paid envelope addressed to the person(s) listed below, by depositing said envelope in the U.S. Mail. Roberto Morales Guitierrez H-84999 CTF North State Prison WB223-L PO Box 705 Soledad, CA 93960 19 20 21 22 /s/ Linn Van Meter Linn Van Meter Administrative Law Clerk to the Honorable Nandor J. Vadas 23 24 25 26 27 28 4

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