Contreras v. Backer et al

Filing 56

ORDER that petitioner's "motion to alter or amend judgment" (ECF No. 49 ) is DENIED; petitioner's motion for extension of time (ECF No. 53 ) is GRANTED nunc pro tunc as of April 27, 2018. Signed by Judge Larry R. Hicks on 2/28/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GUSTAVO CONTRERAS,

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***
Case No. 3:14-cv-00435-LRH-WGC
Plaintiff,

ORDER

v.
RENEE BAKER,

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Defendant.
Before the court is petitioner’s “motion to alter or amend judgment.” ECF No. 49.

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With the motion, petitioner asks the court to reconsider its order of February 14, 2018,

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(ECF No. 48) which dismissed as procedurally defaulted Grounds 8, 9, and 10 of his

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petition for writ of habeas corpus (ECF No. 3). In particular, petitioner argues that the

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court erred in deciding petitioner had not made a sufficient showing of actual innocence

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for the purpose of excusing his procedural defaults.

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The underlying conviction in this case is battery by a prisoner, which was based

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on evidence that the petitioner, while an inmate at Clark County Detention Center,

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“sucker-punched” another inmate, Christian Contreras, then sliced his head with a sharp

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object. To show actual innocence, petitioner provided the court with two items -- a

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“Booking Summary Report” for Christian Contreras generated by the Nevada

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Department of Corrections (ECF No. 16-2, p. 56) and a declaration signed by an inmate

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who claims to have been Christian Contreras’s cellmate and to have witnessed at least

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a portion of the altercation (ECF No. ECF No. 18, p. 5-6).
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According to petitioner, the court overlooked and/or misunderstood aspects of

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the proffered evidence and misapplied the actual innocence standard articulated in

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Schlup v. Delo, 513 U.S. 298 (1995). After reviewing the proffered evidence again,

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however, the court remains unconvinced of petitioner’s actual innocence. That is, “in

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light of all of the evidence,” the “new evidence” does not establish that “it is more likely

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than not that no reasonable juror would have found petitioner guilty beyond a

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reasonable doubt.” Id. at 327-28.

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IT IS THEREFORE ORDERED that petitioner’s “motion to alter or amend
judgment” (ECF No. 49) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for extension of time (ECF No.
53) is GRANTED nunc pro tunc as of April 27, 2018.
DATED this 28th day of February, 2019.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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