(HC) Williams v. Hill, No. 1:2012cv01807 - Document 17 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS to Deny Petitioner's Motion for Reconsideration of the Court's Dismissal of his Petition as Successive and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Barbara A. McAuliffe on 6/3/14. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 CHRISTOPHER WILLIAMS, Case No. 1:12-cv-01807-LJO-BAM-HC 12 FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION FOR RECONSIDERATION OF THE COURT’S DISMISSAL OF HIS PETITION AS SUCCESSIVE (DOC. 16) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 13 14 Petitioner, v. 15 RICK HILL, 16 Respondent. OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenged his homicide conviction. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. I. Background On December 19, 2012, the Court adopted the Magistrate Judge’s findings and recommendations regarding screening the petition, dismissed the petition as a successive petition, and declined to issue a certificate of appealability; judgment was entered. 7, 9, 10.) (Docs. Petitioner filed a notice of appeal, but on November 21, 1 1 2013, Petitioner’s request for a certificate of appealability was 2 denied by the appellate court, and on February 5, 2014, the Ninth 3 Circuit Court of Appeals referred to the case in a later order as 4 being closed. 5 (Doc. 4.) Presently pending before the Court is Petitioner’s motion, 6 which was filed on March 5, 2014, and is entitled, “NOTICE OF MOTION 7 60(B)(6) TO THE DENIAL OF REVIEW OF PROCEDURAL DEFAULT MODIFICATION 8 OF SENTENCE TO AN DETERMINATE PRISON TERM,” which the Court 9 CONSTRUES as a motion for reconsideration of the Court’s dismissal 10 of Petitioner’s petition. 11 II. Motion for Reconsideration 12 In the motion, Petitioner asks for modification of his sentence 13 based on insufficient evidence and excessive punishment because the 14 judgment was based on a violation of Petitioner’s rights under the 15 Fifth, Sixth, and Fourteenth Amendments. Petitioner argues that he 16 suffered the ineffective assistance of counsel in the form of his 17 counsel’s failure to raise issues regarding the sufficiency of the 18 evidence and the application of state law principles involving 19 malice and felony murder. (Doc. 16.) It is clear that Petitioner 20 is challenging the same conviction and judgment that was the basis 21 of the petition that this Court dismissed and that further was the 22 subject of Petitioner’s unsuccessful appeal. 23 Federal Rule of Civil Procedure 60(b) governs the 24 reconsideration of final orders of the district court. The rule 25 permits a district court to relieve a party from a final order or 26 judgment on grounds including but not limited to 1) mistake, 27 inadvertence, surprise, or excusable neglect; 2) newly discovered 28 evidence; 3) fraud, misrepresentation, or misconduct by an opposing 2 1 party; or 4) any other reason justifying relief from the operation 2 of the judgment. Fed. R. Civ. P. 60(b). The motion for 3 reconsideration must be made within a reasonable time, and in some 4 instances, within one year after entry of the order. Fed. R. Civ. 5 P. 60(c). 6 Rule 60(b) generally applies to habeas corpus proceedings. 7 See, Gonzalez v. Crosby, 545 U.S. 524, 530-36 (2005). Although the 8 Court has discretion to reconsider and vacate a prior order, Barber 9 v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), motions for 10 reconsideration are disfavored. A party seeking reconsideration 11 must show more than a disagreement with the Court's decision and 12 offer more than a restatement of the cases and arguments considered 13 by the Court before rendering the original decision. United States 14 v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001). 15 Motions to reconsider pursuant to Rule 60(b)(1) are committed to the 16 discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460 17 (9th Cir. 1983), which can reconsider interlocutory orders and re18 determine applications because of an intervening change in 19 controlling law, the availability of new evidence or an expanded 20 factual record, or the need to correct a clear error or prevent 21 manifest injustice, Kern-Tulare Water Dist. v. City of Bakersfield, 22 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in 23 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 24 Local Rule 230(j) provides that whenever any motion has been 25 granted or denied in whole or in part, and a subsequent motion for 26 reconsideration is made upon the same or any alleged different set 27 of facts, counsel shall present to the Judge or Magistrate Judge to 28 whom such subsequent motion is made an affidavit or brief, as 3 1 appropriate, setting forth the material facts and circumstances 2 surrounding each motion for which reconsideration is sought, 3 including information concerning the previous judge and decision, 4 what new or different facts or circumstances are claimed to exist 5 which did not exist or were not shown upon such prior motion, what 6 other grounds exist for the motion, and why the facts or 7 circumstances were not shown at the time of the prior motion. 8 Here, Petitioner has not shown any law or facts that reflect 9 any abuse of discretion, clear error, or manifest injustice. 10 Petitioner argues that his failure to raise issues earlier 11 should be excused because he suffered the ineffective assistance of 12 counsel. However, Petitioner’s claims clearly relate to the same 13 homicide conviction that this Court has determined was previously 14 the subject of a petition, and thus Petitioner continues to attempt 15 to bring a successive petition without the permission of the Ninth 16 Circuit Court of Appeals. 17 Because the petition was filed after April 24, 1996, the 18 effective date of the Antiterrorism and Effective Death Penalty Act 19 of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. 20 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 21 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 22 Under the AEDPA, a federal court must dismiss a second or 23 successive petition that raises the same grounds as a prior 24 petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a 25 second or successive petition raising a new ground concerning the 26 same judgment unless the petitioner can show that 1) the claim rests 27 on a new, retroactive, constitutional right or 2) the factual basis 28 of the claim was not previously discoverable through due diligence, 4 1 and the new facts establish by clear and convincing evidence that 2 but for the constitutional error, no reasonable factfinder would 3 have found the applicant guilty of the underlying offense. 28 4 U.S.C. § 2244(b)(2)(A)-(B). 5 However, it is not the district court that decides whether a 6 second or successive petition meets these requirements, which allow 7 a petitioner to file a second or successive petition. Section 8 2244(b))3)(A) provides, “Before a second or successive application 9 permitted by this section is filed in the district court, the 10 applicant shall move in the appropriate court of appeals for an 11 order authorizing the district court to consider the application.” 12 In other words, a petitioner must obtain leave from the Ninth 13 Circuit before he or she can file a second or successive petition in 14 the district court. 15 (1996). See, Felker v. Turpin, 518 U.S. 651, 656-57 This Court must dismiss any claim presented in a second or 16 successive habeas corpus application under section 2254 that was 17 presented in a prior application unless the Court of Appeals has 18 given Petitioner leave to file the petition. 19 2244(b)(1). 28 U.S.C. § This limitation has been characterized as 20 jurisdictional. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper 21 v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 22 Thus, it appears that this Court lacks jurisdiction to proceed 23 with the petition. Petitioner has not shown any basis for relief 24 pursuant to Rule 60. 25 III. Certificate of Appealability 26 Unless a circuit justice or judge issues a certificate of 27 appealability, an appeal may not be taken to the Court of Appeals 28 from the final order in a habeas proceeding in which the detention 5 1 complained of arises out of process issued by a state court. 28 2 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 3 (2003). A district court must issue or deny a certificate of 4 appealability when it enters a final order adverse to the applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. 6 A certificate of appealability may issue only if the applicant 7 makes a substantial showing of the denial of a constitutional right. 8 ' 2253(c)(2). Under this standard, a petitioner must show that 9 reasonable jurists could debate whether the petition should have 10 been resolved in a different manner or that the issues presented 11 were adequate to deserve encouragement to proceed further. Miller- 12 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 13 473, 484 (2000)). A certificate should issue if the Petitioner 14 shows that jurists of reason would find it debatable whether: (1) 15 the petition states a valid claim of the denial of a constitutional 16 right, and (2) the district court was correct in any procedural 17 ruling. 18 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 19 claims in the habeas petition, generally assesses their merits, and 20 determines whether the resolution was debatable among jurists of 21 reason or wrong. Id. An applicant must show more than an absence 22 of frivolity or the existence of mere good faith; however, the 23 applicant need not show that the appeal will succeed. Miller-El v. 24 Cockrell, 537 U.S. at 338. 25 Here, is does not appear that reasonable jurists could debate 26 whether the petition should have been resolved in a different 27 manner. Petitioner has not made a substantial showing of the denial 28 of a constitutional right. 6 1 Accordingly, it will be recommended that the Court decline to 2 issue a certificate of appealability. 3 IV. Recommendations 4 In accordance with the foregoing, it is RECOMMENDED that: 5 1) Petitioner’s motion for reconsideration be DENIED; and 6 2) The Court DECLINE to issue a certificate of appealability. 7 These findings and recommendations are submitted to the United 8 States District Court Judge assigned to the case, pursuant to the 9 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 10 Rules of Practice for the United States District Court, Eastern 11 District of California. Within thirty (30) days after being served 12 with a copy, any party may file written objections with the Court 13 and serve a copy on all parties. Such a document should be 14 captioned AObjections to Magistrate Judge=s Findings and 15 Recommendations.@ Replies to the objections shall be served and 16 filed within fourteen (14) days (plus three (3) days if served by 17 mail) after service of the objections. The Court will then review 18 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 19 The parties are advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court=s 21 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 IT IS SO ORDERED. 23 24 Dated: /s/ Barbara June 3, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7
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