Horn v. Montgomery et al

Filing 16

ORDER Denying Respondent's 13 Motion for Reconsideration. Signed by Magistrate Judge Bernard G. Skomal on 8/12/2015. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JESSIE RAY LYNN HORN,

Civil
No.

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Petitioner,
v.
W. L. MONTGOMERY, Warden,
Respondent.

14cv3030-BTM (BGS)

ORDER DENYING
RESPONDENT’S MOTION FOR
RECONSIDERATION
[ECF No. 13.]

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I. INTRODUCTION AND PROCEDURAL HISTORY
On July 10, 2015, Respondent filed a motion for reconsideration of the Court’s

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Report & Recommendation. [ECF No. 13.]

In the motion for reconsideration,

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Respondent advises the Court that it “recently acquired a copy of the prison mail log

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showing that [Jessie Ray Lynn] Horn did in fact sign for the court order” from the

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California Court of Appeal denying his petition for writ of habeas corpus. Id. at 2:3-4.

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The legal mail log submitted by Respondent purports to show Horn’s signature and is

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attached to the affidavit of deputy attorney general Vincent P. La Pietra. [ECF No. 13-2.]

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Respondent does not provide a declaration from an employee of the Calipatria State

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Prison that explains the maintenance and operation of the prison’s legal mail log.

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Respondent contends the signed mail log demonstrates Horn did receive notice of

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the California Court of Appeal’s decision; therefore, the statutory and equitable tolling

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found by the Court in its Report and Recommendation is inapplicable, making Horn’s

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Petition for Writ of Habeas Corpus untimely. Id. at 2. Respondent requests the Court
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14cv3030

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reconsider its July 9, 2015 Report and Recommendation denying Respondent’s Motion

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to Dismiss and recommending that Respondent be directed to file an Answer in response

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to Horn’s Petition for Writ of Habeas Corpus. [ECF No. 12.]

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On July 13, 2015, the Court issued an order requiring further briefing. [ECF No.

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14.] In accordance with the Court’s Order, Horn filed an opposition on July 30, 2015.

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[ECF No. 15.] In the opposition brief, Horn submitted a declaration stating that the

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signature on the mail log presented by Respondent is not his signature. [ECF No. 15 at

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4-5.] In addition, Horn included exhibits to his declaration in order to show several

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examples of his signature from various documents signed by him. Id. at 6-8.

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Although the Court provided Respondent with a deadline by which to file a reply

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in support of the motion for reconsideration, Respondent did not file a reply.

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II. STANDARD OF REVIEW

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“Reconsideration is appropriate if the district court: (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.”) School Dist. No. 1J,

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Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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In order to support a motion for reconsideration based on the first ground requiring

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new or different facts and circumstances, federal case law makes clear that “the failure

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to file documents in an original motion or opposition does not turn the late filed

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documents into newly discovered evidence.” Id. The new evidence presented to the

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Court: (1) must be in existence; (2) must be such that it was not and could not have been

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discovered in time to present it; (3) must not be cumulative or impeaching and (4) must

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be admissible and credible, and of such a material and controlling nature as will probably

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change the outcome. See Kittner v. Gates, 783 F.Supp. 2d 170 (D.C.Cir. 2011); see also

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Frederick S. Wyle Professional Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985)

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(evidence available before party filed its opposition was not “newly discovered

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evidence”).

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III. DISCUSSION AND ORDER THEREON

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Respondent has failed to meet its burden for reconsideration of the Court’s July 9,

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2015 Report and Recommendation. [ECF No. 12.] Respondent has not only failed to

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demonstrate that the evidence it submitted after the Court issued its Report and

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Recommendation is newly discovered evidence that could not have been presented at the

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time it filed its motion to dismiss, but it has also failed to show that the mail log it has

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submitted to the Court is credible.

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Specifically, the LaPietra affidavit states that only after reading the Court’s Report

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and Recommendation, did Respondent’s counsel contact Calipatria State Prison to

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discuss the processing of legal mail. [ECF No. 13-2 at ¶4.] The La Pietra affidavit does

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not explain why this communication with Calipatria could not have occurred before the

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filing of its motion to dismiss.

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But even if Respondent could demonstrate that the legal mail log submitted as

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evidence could be considered “newly discovered” for purposes of the rule, Respondent’s

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motion for reconsideration nevertheless fails for lack of credibility. Horn disputes the

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genuineness of the signature on the legal mail log. Moreover, Respondent has failed to

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submit, either in conjunction with the motion for reconsideration or in a reply, a

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declaration from Calipatria that explains legal mail procedures and verifies the contents

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of the legal mail log that was presented. Respondent’s motion for reconsideration, is

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therefore, DENIED.

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DATED: August 12, 2015

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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14cv3030