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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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ROBERTO MORALES GUITIERREZ,
Petitioner,

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vs.

ORDER DENYING MOTION
TO ALTER OR AMEND THE
JUDGMENT

MARION E. SPEARMAN,
Respondent.

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For the Northern District of California

United States District Court

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No. C 14-0861 NJV (PR)

(Doc. 11.)
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The Court entered judgment on July 17, 2014. (Doc. 10.)
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On August 4, 2014, Petitioner filed a motion to alter or amend the judgment pursuant to
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Fed. R. Civ. P. 59(e). (Doc. 11.)
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A motion to alter or amend judgment under Rule 59 must be made no later than
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twenty-eight days after entry of judgment. See Fed. R. Civ. P. 59(e) (effective Dec. 1,
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2009). A motion for reconsideration under Rule 59(e) "'should not be granted, absent
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highly unusual circumstances, unless the district court is presented with newly discovered
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evidence, committed clear error, or if there is an intervening change in the law."' McDowell
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v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc).
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Evidence is not newly discovered for purposes of a Rule 59(e) motion if it was
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available prior to the district court's ruling. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th
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Cir. 2011) (affirming district court's denial of habeas petitioner's motion for reconsideration
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where petitioner's evidence of exhaustion was not "newly discovered" because petitioner
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was aware of such evidence almost one year prior to the district court's denial of the
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petition).
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A district court does not commit clear error warranting reconsideration when the

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question before it is a debatable one. See McDowell, 197 F.3d at 1256 (district court did

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not abuse its discretion in denying reconsideration where question whether it could enter

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protective order in habeas action limiting Attorney General's use of documents from trial

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counsel's file was debatable).

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Courts construing Rule 59(e), have noted that a motion to reconsider is not a vehicle

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permitting the unsuccessful party to "rehash" arguments previously presented, or to present

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"contentions which might have been raised prior to the challenged judgment." Costello v.

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United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991). These holdings "reflect[] district

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courts' concerns for preserving dwindling resources and promoting judicial efficiency." Id.
Petitioner was sentenced on December 19, 1997. Court records indicate that

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For the Northern District of California

United States District Court

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Petitioner filed a previous petition regarding the same conviction, Gutierrez v. Galza, 01-

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20126 JF, that was denied as untimely on April 11, 2002. The Ninth Circuit denied an

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appeal on February 26, 2003. In the present case, Petitioner attempted to bring a

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successive petition. In moving for reconsideration, Petitioner relies on 28 U.S.C.

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§ 2244(b)(2), which provides in relevant part that “[a] claim presented in a second or

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successive habeas corpus application under section 2254 that was not presented in a prior

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application shall be dismissed unless . . . [] the factual predicate for the claim could not

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have been discovered previously through the exercise of due diligence; and (ii) the facts

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underlying the claim, if proven and viewed in light of the evidence as a whole, would be

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sufficient to establish by clear and convincing evidence that, but for constitutional error, no

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reasonable factfinder would have found the applicant guilty of the underlying offense.”

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Petitioner, however, ignores Section (b)(3)(A) of the statute, which provides that “[b]efore a

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second or successive application permitted by this section is filed in the district court, the

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applicant shall move in the appropriate court of appeals for an order authorizing the district

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court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). As Petitioner has not moved

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for such an order from the Ninth Circuit, this case was dismissed. Petitioner presents no

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new arguments in his motion to alter or amend the judgment, therefore it is denied.

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//
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CONCLUSION

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Petitioner’s motion to alter or amend the judgment (Docket No. 11) is DENIED.

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Because reasonable jurists would not find the result here debatable, a certificate of

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appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)

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(standard for COA).

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IT IS SO ORDERED.
Dated: August 21, 2014.
NANDOR J. VADAS
United States Magistrate Judge

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For the Northern District of California

United States District Court

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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For the Northern District of California

United States District Court

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CERTIFICATE OF SERVICE

Petitioner,

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No.1:14-CV- 0861 NJV

ROBERTO MORALES
GUITIERREZ

v.
MARION E. SPEARMAN,
Respondent.

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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

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/s/ Linn Van Meter
Linn Van Meter
Administrative Law Clerk to the
Honorable Nandor J. Vadas

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