Brown v. Warden
Filing
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ORDER signed by Judge Morrison C. England, Jr., on 6/24/11, ORDERING that 28 petitioner's motion, construed as a Motion for Reconsideration of this court's order declining to issue a Certificate of Appealability, is DENIED.(Kastilahn, A) Modified on 6/27/2011 (Kastilahn, A). (cc: USCA electronically)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRYANT KEITH BROWN,
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Petitioner,
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No. 2:10-cv-2040 MCE KJN P
vs.
WARDEN,
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ORDER
Respondent.
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Petitioner is a state prisoner proceeding pro se with an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 2, 2010, Petitioner filed a petition for a writ of habeas corpus based on
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claims for ineffective assistance of counsel and actual innocence. Respondent filed a Motion to
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Dismiss. On March 9, 2011, the Court granted Respondent’s Motion to Dismiss, and the Court
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declined to issue a certificate of appealability.
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On March 15, Petitioner appealed the Court’s decision denying him a certificate
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for his ineffective assistance of counsel claim. On April 20, 2011, the Court of Appeals for the
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Ninth Circuit directed that Petitioner’s request be filed in the instant Court for processing as a
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notice of appeal from the final judgment entered on March 9, 2011. On May 16, 2011, Petitioner
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filed a document entitled “Motion to the USDC Judge Assigned to Consider Whether Or Not to
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Grant (COA) . . .” asking the Court to grant Petitioner’s Certificate of Appealability because
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Petitioner’s appellate counsel unreasonably failed to discover a non-frivolous argument to raise
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on appeal. With this document, Petitioner also filed a Declaration asserting that the Court should
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grant Petitioner’s current request because Petitioner established that he acted diligently in filing
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his federal petition and because Petitioner encountered extraordinary circumstances that
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prevented him from filing his federal habeas petition in a timely manner. Liberally construed, it
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appears Petitioner seeks a Motion for Reconsideration (“Motion”) of the Court’s order declining
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to issue a certificate of appealability. For the reasons set forth below, Petitioner’s Motion is
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denied.
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A motion for reconsideration is properly brought pursuant to either Federal Rule
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of Civil Procedure 59(e) or Rule 60(b).1 Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989). A
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motion for reconsideration is treated as a Rule 59(e) motion if filed within twenty-eight days of
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entry of judgment, but as a Rule 60(b) motion if filed more than twenty-eight days after
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judgment. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99
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(9th Cir. 2001). The mailbox rule provides “that a habeas petitioner’s state and federal filings are
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constructively filed when turned over to prison officials for forwarding to the Clerk of the
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Court.” Roberts v. Cash, No. CV-11-03174, 2011 WL 2413414, at *1 n.1 (C.D. Cal. June 14,
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2011) (citing Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002)); Houston v. Lack, 487 U.S.
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266, 270 (1988).
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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure
unless otherwise noted.
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When the date that the petitioner turned the filings over to prison officials is unclear, courts have
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utilized the signature date on the filing as the relevant date, because the signature date is the
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earliest date on which the petitioner could have turned the motion over to the prison authorities
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for mailing. Roberts, 2011 WL 2413414, at *1 n.1; Outley v. James, No. 2:06-cv-02271-MCE-
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CMK-P, 2008 WL 4183901, at *1 (E.D. Cal. Sept. 9, 2008).
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In the present case, the final judgment was entered on March 9, 2011. Petitioner’s
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Motion was signed on April 12, 2011, and was filed on May 28, 2011. Even providing Petitioner
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the benefit the mailbox rule and utilizing the signature date as the relevant date, Petitioner’s
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Motion was filed more than twenty-eight days after the entry of judgement. Thus, Petitioner’s
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Motion must be treated as arising under Rule 60.
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Rule 60(b) provides for reconsideration of a final judgment or any order where
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one of more of the following is shown: (1) mistake, inadvertence, surprise, or excusable neglect;
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(2) newly discovered evidence which, with reasonable diligence, could not have been discovered
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within twenty-eight days of entry of judgment; (3) fraud, misrepresentation, or misconduct of an
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opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; and (6) any other
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reason justifying relief. Fed. R. Civ. P. 60(b). A motion for reconsideration on any of these
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grounds must be brought within a reasonable time, and no later than one year, of the entry of the
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judgment or the order being challenged. Fed. R. Civ. P. 60(c)(1).
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Petitioner’s Motion and Declaration assert numerous grounds for reconsideration.
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However, none of Petitioner’s grounds for reconsideration may be properly held to rely on Rule
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60(b)(1) through Rule 60(b)(5). Accordingly, the Court construes Petitioner’s Motion as relying
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on Rule 60(b)(6), the “catch-all” provision of the Rule allowing the Court to relieve a party from
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a final judgment, order, or proceeding for “any other reason that justifies relief.”
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A court should be loathe to revisit its own decisions unless extraordinary
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circumstances show that its prior decision was clearly erroneous. Christianson v. Colt Indus.
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Operating Corp., 486 U.S. 800, 817 (1988). This principle is embodied in the law of the case
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doctrine, under which “a court is generally precluded from reconsidering an issue that has already
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been decided by the same court, or a higher court in the identical case.” United States v.
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Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th
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Cir. 1993)). Courts therefore use Rule 60(b)(6) relief sparingly as “an equitable remedy to
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prevent manifest injustice” and grant relief “only where extraordinary circumstances prevent [] a
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party from taking timely action to prevent or correct an erroneous judgment.” United States v.
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Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Accordingly, to obtain
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relief under Rule 60(b)(6), a petitioner must show that he suffered an injury as a result of the
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judgment from which he seeks relief and that circumstances beyond his control prevented him
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from taking timely action to protect his interests. Id. at 1049. Mere dissatisfaction with the
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court's order or belief that the court is wrong in its decision are not adequate grounds for relief
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under Rule 60(b)(6). Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th
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Cir. 1981).
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Additionally, Local Rule 230(j) requires a party filing a motion for
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reconsideration to show the “new or different facts or circumstances claimed to exist which did
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not exist or were not shown upon such prior motion, or what other grounds exist for the motion.”
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E.D. Cal. L.R. 230(j). A district court may properly deny a motion for reconsideration that
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simply reiterates an argument already presented by the petitioner. Maraziti v. Thorpe, 52 F.3d
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252, 255 (9th Cir. 1995). Finally, motions to reconsider are committed to the discretion of the
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trial court. Pritchen v. McEwen, No. 1:10-cv-02008-JLT HC, 2011 WL 2115647, at *1 (E.D.
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Cal. May 27, 2011); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).
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In his Motion, Petitioner alleges no newly discovered evidence, no mistake or
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surprise, and no fraud by the adverse party. Furthermore, Petitioner fails to present the Court
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with any extraordinary circumstances that show that the Court’s decision denying Petitioner a
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certificate of appealability was clearly erroneous, as required to state a cognizable motion for
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reconsideration under Rule 60(b)(6). Petitioner also fails to state any facts showing that
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Petitioner was prevented from seeking earlier, more timely relief. Petitioner argues in his
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accompanying Declaration that he was “conducting an ongoing bona fide investigation of those
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potential but undeveloped claims throughout the period of delay” and therefore the statute of
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limitations should be tolled. Pet’r’s Decl., 2, ECF No. 29. However, an ongoing investigation is
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not an extraordinary circumstance requiring the Court to grant Petitioner’s Motion. Moreover,
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Petitioner has not shown that “new or different facts or circumstances . . . exist which did not
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exist or were not shown upon such prior motion, or what other grounds exist for the motion,” as
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required by Local Rule 230(j). Petitioner argues that his appellate counsel ignored issues clearly
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stronger than those presented in the Wende brief. Pet’r’s Mot., 1, ECF No. 28. However, this
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argument simply reiterates an argument that has already been made to the Court. Granting
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Petitioner’s Motion would require reopening a question that the Court has already resolved in
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Petitioner’s case, and would require the Court to reconsider an argument identical to that already
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made by Petitioner. Doing so would constitute a waste of judicial resources, and is inappropriate
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under both the standards of Rule 60(b)(6) and the law of the case doctrine.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s May 16, 2011, Motion (ECF No. 28), construed as a Motion for
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Reconsideration of this court’s order declining to issue a Certificate of Appealability, is
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DENIED.
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IT IS SO ORDERED.
Dated: June 24, 2011
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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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