Smith v. Small et al

Filing 43

ORDER denying Petitioner's Motion for Reconsideration (ECF No. 42 ). Signed by Judge Cynthia Bashant on 8/18/2014. (cxl)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 CHRISTOPHER DALE SMITH, 13 Petitioner, 14 15 v. ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION [ECF No. 42] 16 17 Case No. 10-cv-2429-BAS(JLB) LARRY SMALL, et al., Respondents. 18 19 20 21 On November 24, 2010, Petitioner Christopher Dale Smith, a state prisoner 22 represented by counsel, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. 23 § 2254 seeking relief from an indeterminate 25-years-to-life and a determinate 24-year 24 sentence. On December 20, 2006, following a second trial, a jury found Petitioner 25 guilty of: (1) one count of forcible rape; (2) two counts of forcible oral copulation; (3) 26 burglary of an inhabited dwelling while a person was in the residence; and (4) false 27 imprisonment by violence or menace.1 28 1 The first trial ended in a mistrial after the trial court found that the jury was deadlocked. -1- 10cv2429 1 On October 21, 2013, United States Magistrate Judge William McCurine, Jr. 2 issued a Report and Recommendation (“Report”) recommending that this Court deny 3 the petition in its entirety. (ECF No. 31.) Petitioner untimely filed objections 4 requesting that his “late-filed traverse” be considered as objections to the report. (ECF 5 No. 36.) This Court considered Petitioner’s late-filed traverse as objections, overruled 6 Petitioner’s objections, approved and adopted the report in its entirety, and denied the 7 petition. Petitioner now moves for reconsideration under Federal Rule of Civil 8 Procedure 60(b). For the following reasons, the Court DENIES Petitioner’s motion. 9 10 11 I. LEGAL STANDARD 12 Once judgment has been entered, reconsideration may be sought by filing a 13 motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend 14 a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from 15 judgment). See Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir. 1993). 16 “Although Rule 59(e) permits a district court to reconsider and amend a previous 17 order, the rule offers an extraordinary remedy, to be used sparingly in the interests of 18 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 19 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). “Indeed, a 20 motion for reconsideration should not be granted, absent highly unusual circumstances, 21 unless the district court is presented with newly discovered evidence, committed clear 22 error, or if there is an intervening change in the controlling law.” Id. (quoting 389 23 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (internal quotation 24 marks omitted). Further, a motion for reconsideration may not be used to raise 25 arguments or present evidence for the first time when they could reasonably have been 26 raised earlier in the litigation. Id. It does not give parties a “second bite at the apple.” 27 See id. 28 appropriate basis for reconsideration. Finally, “after thoughts” or “shifting of ground” do not constitute an -2- Ausmus v. Lexington Ins. Co., No. 10cv2429 1 08-CV-2342-L, 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009) (Lorenz, J.). 2 Similarly, Rule 60(b) provides for extraordinary relief and may be invoked only 3 upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972 4 F.2d 1038, 1044 (9th Cir.1994) (citing Ben Sager Chem. Int’l v. E. Targosz & Co., 560 5 F.2d 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration 6 based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly 7 discovered evidence which by due diligence could not have been discovered before the 8 court’s decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the 9 judgment has been satisfied; or (6) any other reason justifying relief. Fed. R. Civ. P. 10 60(b). That last prong is “used sparingly as an equitable remedy to prevent manifest 11 injustice and is to be utilized only where extraordinary circumstances prevented a party 12 from taking timely action to prevent or correct an erroneous judgment.” Delay v. 13 Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007). 14 15 II. ANALYSIS 16 Petitioner requests reconsideration on two grounds: (1) because of Petitioner’s 17 counsel’s mistake in not informing the Court how serious his illness was; and (2) 18 because of the Court’s “misunderstanding of the traverse as not responding to the 19 objections [sic].”2 (Pet’r’s Mot. 2:3–5.) 20 On October 24, 2013, the magistrate judge issued the report. In the report, he 21 also set a briefing schedule for objections and replies: objections to the report were due 22 by November 5, 2013, and replies were due by November 19, 2013. Though the 23 magistrate judge issued the report without Petitioner’s traverse, Petitioner’s deadline 24 to file the traverse was extended from September 9, 2013 to October 17, 2013. Despite 25 the extension, Petitioner failed to timely file his traverse. Instead, after the magistrate 26 judge issued the report, Petitioner filed his traverse on November 10, 2013. At that 27 point, clearly Petitioner’s counsel was capable of drafting legal briefs, but rather than 28 2 Presumably, Petitioner means that the traverse responded to the report and not the objections. -3- 10cv2429 1 drafting objections, he chose to draft and file the traverse. The severity of Petitioner’s 2 counsel’s illness fails to explain how he was capable of drafting and filing a traverse, 3 but not objections to the report. Then on December, 31, 2013—almost two months 4 after the objections were due—Petitioner filed his “objections” by incorporating the 5 late-filed traverse. It also appears at that time Petitioner’s counsel was capable of 6 drafting and filing legal documents. Despite these apparent opportunities, objections 7 responding directly to the report were never filed. 8 This Court discussed in great detail the difficult position Petitioner placed it in 9 by missing every deadline and then incorporating the traverse—which was meant to 10 directly respond to Respondents’ answer—for the purpose to objecting to the report. 11 (See June 26, 2014 Order 3:20–6:3.) Moreover, Petitioner’s counsel remains cryptic 12 regarding the dates his illness affected his ability to practice law. Though he provides 13 more information about the severity of his illness, he fails to explain when that illness 14 became a burden on his ability to represent Petitioner for his habeas petition. In other 15 words, there is no explanation before this Court why or how Petitioner’s counsel was 16 able to draft and file a traverse, albeit late, but not objections directly responding to the 17 report. Thus, the Court cannot conclude that granting relief under Rule 60(b) is 18 warranted for Petitioner’s first ground. 19 Moving on to Petitioner’s second ground, Petitioner argues that the Court 20 “misunderstood the traverse as not responding to the [report].” He explains that “the 21 Traverse responded to the R and R by pointing out that the entire R and R never 22 considered the changes which occurred between first and second trials, making the 23 same mistake as the California Court of Appeal.” (Pet’r’s Mot. 3:15–4:2.) The 24 inherent fact that follows from Petitioner’s position is that the traverse did not directly 25 address a specific issue discussed in the report. This was precisely the problem that 26 this Court emphasized in its June 26, 2014 order. In that order, the Court stated in no 27 uncertain terms that 28 // -4- 10cv2429 1 2 3 4 5 6 7 By not filing objections that specifically address Judge McCurine’s findings and recommendations but rather incorporating the traverse as the objections, Petitioner leaves the Court with the difficult task of deciphering and extrapolating how the arguments presented in the traverse correspond to the findings and recommendations in the report in order to produce plausible objections. By transferring that responsibility to the Court, which is what Petitioner effectively does, Petitioner produces a situation that undermines the efficiency of the magistrate system and judicial process. (June 26, 2014 Order 4:26–5:5.) 8 Furthermore, the position that the traverse “responded” to the report by pointing 9 out that the entire report did not consider certain issues lacks merit. The traverse did 10 not identify the report in anyway, even though at the time it was filed, Petitioner 11 apparently had the opportunity to augment the traverse to do so. The Court nonetheless 12 tried to decipher and extrapolate Petitioner’s arguments to apply to the report. Also, 13 characterizing the traverse as challenging the “entire” report puts it squarely in the 14 “general objections” category that does not address the substance of any specific 15 finding in the report, which in turn has the same effect as failing to object. See 16 Alcantara, 2013 WL 4517861, at *1; see also Turner v. Tilton, 07-CV-2036, 2008 WL 17 5273526, at *1 (S.D. Cal. Dec. 18, 2008) (Sammartino, J.) (“[H]is objections do not 18 address the substance of the R & R’s findings. Instead, the objections discuss at length 19 the claims made in the petition. Thus, the Court finds that Petitioner has not made an 20 objection to any specific portion of the report. Therefore, the Court need only satisfy 21 itself that the R & R is not clearly erroneous.”). Despite Petitioner’s argument that the 22 Court misunderstood the traverse, the Court reviewed the traverse and came to the 23 conclusion that the traverse failed to present any justification to sustain the objections 24 and reject or alter any portion of the report. (See June 26, 2014 Order 6:16–22.) 25 Based on the information before this Court, and the arguments presented, the 26 Court finds that relief under Rule 60(b) is not warranted. See Fed. R. Civ. P. 60(b). 27 Petitioner fails to provide any Rule 60(b) grounds to explain his untimely traverse and 28 objections, and even if he succeeded in justifying the delay, Petitioner’s motion only -5- 10cv2429 1 confirms that the traverse rose to the level of “general objections,” which is effectively 2 the same as not objecting at all. Consequently, the Court also finds that reconsideration 3 of its decision to decline issuing a certificate of appealability is also not warranted. 4 5 6 7 8 III. CONCLUSION & ORDER Because Petitioner fails to demonstrate entitlement to reconsideration, the Court DENIES his motion in its entirety. (ECF No. 42.) IT IS SO ORDERED. 9 10 DATED: August 18, 2014 11 Hon. Cynthia Bashant United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 10cv2429

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