(HC)Tucker v. Brazelton, No. 1:2013cv01534 - Document 20 (E.D. Cal. 2014)

Court Description: ORDER Disregarding Untimely Objections Filed After The Entry Of Judgment (Docs. 15 - 19 ), ORDER Denying Petitioner's Motion For Reconsideration (Docs. 15 - 19 ) And Declining To Issue A Certificate Of Appealability, Informational Order, signed by District Judge Anthony W. Ishii on 6/30/2014. (Fahrney, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 GERALD L. TUCKER, Case No. 1:13-cv-01534-AWI-BAM-HC 12 ORDER DISREGARDING UNTIMELY OBJECTIONS FILED AFTER THE ENTRY OF JUDGMENT (DOCS. 15-19) 13 Petitioner, v. 14 15 P. D. BRAZELTON, Respondent. 16 ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION (DOCS. 15-19) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY INFORMATIONAL ORDER 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. I. Background Petitioner filed his petition on September 23, 2013. On October 30, 2013, the Magistrate Judge filed findings and recommendations that the petition for writ of habeas be dismissed as an unauthorized successive petition, Petitioner’s motions for injunctive relief and release be dismissed, the Court decline to issue a certificate of appealability, and the Clerk be directed to close the case. The findings and recommendations were served on all 1 1 1 parties on the same date. The findings and recommendations advised 2 the parties that objections could be filed within thirty days and 3 replies within fourteen days after the filing of objections. The 4 thirty-day period for the filing of objections passed without 5 objections being filed. On January 3, 2014, the Court adopted the 6 findings and recommendations, dismissed the petition along with 7 Petitioner’s motions, and declined to issue a certificate of 8 appealability. From February 10, 2014, through May 27, 2014, Petitioner filed 9 10 various documents styled as objections. In these documents, 11 Petitioner asserted generally that the dismissal of his petition was 12 a cover-up of a possible murder, and the CDCR tampered with his mail 13 (doc. 15, 1-2); Petitioner did not consent to Magistrate Judge 14 jurisdiction, the petition challenged a 2002 murder conviction in 15 Tulare, he suffered a miscarriage of justice because the cops 16 tampered with and planted evidence, he was actually innocent, and it 17 was unfair to dismiss the petition without appointing counsel (docs. 18 16, 18, 19); and he had timely submitted unspecified documents 19 because he requested the Clerk of the Central District to copy and 20 send to this Court a copy of a document or documents that he filed 21 there (doc. 17). 22 II. Objections 23 First, although Petitioner has denominated his filings as 24 objections, the filings were untimely if considered to be 25 26 27 28 1 The docket reflects that Petitioner was served at the R.J. Donovan Correctional Facility, the address listed on the docket. (Docs. 6, 8, 14.) Thus, Petitioner received adequate notice of the findings and recommendations. Further, during the same time period, namely, November 2013 through January 2014, Petitioner filed motions for injunctive relief and for release; however, Petitioner did not file objections to the findings and recommendations. (Docs. 9, 11.) 2 1 objections. Further, it does not appear that Petitioner has set 2 forth any grounds that would constitute good cause for an extension 3 of the deadline for filing objections. Finally, the only argument 4 in the filings that appears to address the substance of the findings 5 and recommendations is Petitioner’s contention that the petition 6 filed in the instant case was not successive because it related to a 7 different conviction from that involved in the first habeas 8 proceeding in this Court. However, reference to the petition filed 9 in the instant case and to documents filed in the previous habeas 10 proceeding shows that both petitions relate to Petitioner’s 11 conviction of a violation of Cal. Pen. Code § 187 in connection with 12 the murder and sexual assault of Wilma Jean McNutt. (Pet., doc. 1, 13 1, 5-84; Gerald L. Tucker v. Stuart Ryan, case number 1:04-cv-0566314 OWW-DLB-HC, trav., doc. 37, 7-25; fdgs. & recs., doc. 45, 1-5.) 15 Thus, Petitioner’s filings will not be considered as objections 16 to the findings and recommendations. 17 III. 18 19 Motion for Reconsideration of Ruling regarding Successive Petition It is possible to consider Petitioner’s filings as a motion for 20 reconsideration of the dismissal of the petition as a successive 21 petition. 22 23 A. Legal Standards To the extent that Petitioner’s filings constitute a motion for 24 25 reconsideration, a motion for reconsideration is treated as a motion 26 to alter or amend judgment under Federal Rule of Civil Procedure 27 59(e) if it is filed within the time limit set by Rule 59(e). 28 United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 3 1 1992). Otherwise, it is treated as a motion pursuant to Federal 2 Rules of Civil Procedure 60(b) for relief from a judgment or order. 3 4 5 6 American Ironworks & Erectors, Inc. v. North American Const. Corp., 248 F.3d 892, 989-99 (9th Cir. 2001). A motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) “must be filed no later 7 than 28 days after the entry of the judgment.” Fed. R. Civ. P. 8 59(e). 9 10 11 12 13 Here, pursuant to the mailbox rule, Petitioner’s first “objections” were filed on January 28, 2014, the date of the proof of service. (Doc. 15, 3.) If this date is considered to be the date of filing, it amounted to less than twenty-eight days after 2 14 January 3, 2014, the date upon which the judgment was entered. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dates of filing are calculated pursuant to the “mailbox rule.” Habeas Rule 3(d) provides that a paper filed by a prisoner is timely if deposited in the institution’s internal mailing system on or before the last day for filing. The rule requires the inmate to use the custodial institution’s system designed for legal mail; further, timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement setting forth the date of deposit and verifying prepayment of first-class postage. Id. Habeas Rule 3(d) reflects the “mailbox rule,” initially developed in case law, pursuant to which a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court.” Houston v. Lack, 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). The mailbox rule, liberally applied, in effect assumes that absent evidence to the contrary, a legal document is filed on the date it was delivered to prison authorities, and a petition was delivered on the day it was signed. Houston v. Lack, 487 U.S. at 275-76; Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); Lewis v. Mitchell, 173 F.Supp.2d 1057, 1058 n.1 (C.D.Cal. 2001). The date a petition is signed may be inferred to be the earliest possible date an inmate could submit his petition to prison authorities for filing under the mailbox rule. Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S. 408 (2005). However, if there is a long delay between the alleged mailing and receipt by a court, a district court may attribute the discrepancy to various causes, including the court, the postal service, the prison 4 1 Thus, in an abundance of caution, the Court will consider the 2 filings pursuant to both Rule 59(e) and Rule 60. 3 4 5 6 7 8 9 10 11 1. Relief pursuant to Fed. R. Civ. P. 59(e) is appropriate when there are highly unusual circumstances, the district court is presented with newly discovered evidence, the district court committed clear error, or a change in controlling law intervenes. School Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). 14 15 16 17 18 19 20 21 22 23 24 25 To avoid being frivolous, such a motion must provide a valid ground for reconsideration. See, MCIC Indemnity Corp. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986). 12 13 Relief pursuant to Fed. R. Civ. P. 59(e) 2. Relief pursuant to Fed. R. Civ. P. 60 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on grounds including but not limited to 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud, misrepresentation, or misconduct by an opposing party; or 4) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within a reasonable time, and in some instances, within one year after entry of the order. Fed. R. Civ. P. 60(c). Although the Court has discretion to reconsider and vacate a prior order, Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), 26 27 authorities, or the prisoner himself. See, Koch v. Ricketts, 68 F.3d 1191, 1193 28 n.3 (9th Cir. 1995) (concerning analogous Fed. R. App. P. 4(c)). 5 1 motions for reconsideration are disfavored. A party seeking 2 reconsideration must show more than a disagreement with the Court's 3 decision and offer more than a restatement of the cases and 4 arguments considered by the Court before rendering the original 5 decision. United States v. Westlands Water Dist., 134 F.Supp.2d 6 1111, 1131 (E.D. Cal. 2001). 7 Motions to reconsider pursuant to Rule 60(b)(1) are committed 8 to the discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 9 460 (9th Cir. 1983), which can reconsider interlocutory orders and 10 re-determine applications because of an intervening change in 11 controlling law, the availability of new evidence or an expanded 12 factual record, or the need to correct a clear error or prevent 13 manifest injustice, Kern-Tulare Water Dist. v. City of Bakersfield, 14 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in 15 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 16 A motion for reconsideration under Rule 60(b)(6) will not be 17 granted unless the movant shows extraordinary circumstances 18 justifying relief. 19 Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). Local Rule 230(j) provides that whenever any motion has been 20 granted or denied in whole or in part, and a subsequent motion for 21 reconsideration is made upon the same or any alleged different set 22 of facts, counsel shall present to the Judge or Magistrate Judge to 23 whom such subsequent motion is made an affidavit or brief, as 24 appropriate, setting forth the material facts and circumstances 25 surrounding each motion for which reconsideration is sought, 26 including information concerning the previous judge and decision, 27 what new or different facts or circumstances are claimed to exist 28 which did not exist or were not shown upon such prior motion, what 6 1 other grounds exist for the motion, and why the facts or 2 circumstances were not shown at the time of the prior motion. B. 3 4 Analysis With respect to the Rule 60(b) motion, it must be determined 5 whether the motion itself constitutes a prohibited successive 6 petition. 7 Section 2244(b) requires dismissal of claims raised in an 8 unauthorized successive habeas corpus application. Although Rule 9 60(b) generally applies to habeas corpus proceedings, it applies in 10 habeas proceedings only to the extent that it is not inconsistent 11 with applicable federal statutes and rules. Gonzalez v. Crosby, 545 12 U.S. at 529-36 (holding that § 2244(b)’s limitation on successive 13 petitions did not bar a Rule 60(b) motion challenging a ruling that 14 a § 2254 petition was untimely). A “habeas corpus application” 15 within the meaning of § 2244(b) is a filing that contains a “claim,” 16 which in this context is an asserted federal basis for relief from a 17 state court's judgment of conviction. Id. at 530. Thus, § 2244(b) 18 requires dismissal of an attack on a federal court’s previous 19 resolution of a claim on the merits, or an attempt to add a new 20 ground for relief, a claim based on newly discovered evidence, or a 21 claim based on a change in the law. Id. at 531-32. However, when a 22 Rule 60(b) motion attacks not the substance of the federal court's 23 resolution of a claim on the merits, but rather some defect in the 24 integrity of the federal habeas proceedings, such as fraud on the 25 court, failure to exhaust state court remedies, procedural default, 26 or untimeliness, it does not constitute a habeas corpus application 27 and thus is not subject to the limitation against successive 28 petitions. Id. at 532-33. 7 1 Here, Petitioner’s petition challenged his criminal conviction. 2 It was dismissed as successive and was not determined on the merits. 3 However, Petitioner’s post-judgment filings raise claims for relief 4 from the state judgment of conviction insofar as they allege a 5 miscarriage of justice in the underlying state criminal proceedings, 6 law enforcement’s misconduct concerning the evidence, and actual 7 innocence of the charges; thus, any motion for reconsideration of 8 such claims would be barred as successive. 9 Petitioner’s other assertions, which may be understood as 10 challenging the integrity of the habeas proceedings, do not merit 11 relief pursuant to Rule 60(b). Petitioner’s statements regarding a 12 cover-up and murder are generalized and speculative and do not 13 demonstrate any extraordinary circumstances affecting Petitioner’s 14 claims. Likewise, generalized assertions regarding staff’s 15 tampering with mail in prison or Petitioner’s efforts to have 16 another court clerk copy and send unspecified documents do not show 17 any basis for relief. The fact that Petitioner failed to consent to 18 Magistrate Judge jurisdiction is inapposite because the dispositive 19 orders in Petitioner’s case have been orders of the District Judge; 20 thus, it does not appear that there is a problem with consent or 21 jurisdiction. As previously noted, the record forecloses any claim 22 that when it dismissed the petition, the Court was laboring under a 23 mistake concerning the identity of the judgment challenged in the 24 initial and successive petitions. Finally, as to Petitioner’s claim 25 that it was unfair to dismiss the petition in this proceeding 26 without appointing counsel, the Court considered Petitioner’s motion 27 for the appointment of counsel and denied it because a single, 28 straightforward issue, namely, the successive nature of the 8 1 petition, was presented in the findings and recommendations; the 2 Court specifically found that the interests of justice did not 3 require the appointment of counsel. (Doc. 10.) 4 Thus, Petitioner is not entitled to relief pursuant to Rule 60. 5 Here, the grounds of relief stated in Rule 59(e) are 6 inconsistent with the ban on successive petitions set forth in 28 7 U.S.C. § 2244(b). However, even assuming that the Rule 59(e) motion 8 would not itself constitute a prohibited successive petition, there 9 has been no demonstration of unusual circumstances, newly discovered 10 evidence, or intervening change in controlling law. The dismissal 11 of Petitioner’s petition was not clearly erroneous. 12 In summary, to the extent that Petitioner’s filings constitute 13 a motion for reconsideration of the dismissal of the petition, the 14 motion for reconsideration will be denied. 15 IV. Informational Order 16 Petitioner is INFORMED that because judgment has been entered 17 and the case has been closed, no jurisdiction remains in this Court 18 with respect to this proceeding. 19 20 V. Certificate of Appealability Unless a circuit justice or judge issues a certificate of 21 appealability, an appeal may not be taken to the Court of Appeals 22 from the final order in a habeas proceeding in which the detention 23 complained of arises out of process issued by a state court. 28 24 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 25 (2003). A district court must issue or deny a certificate of 26 appealability when it enters a final order adverse to the applicant. 27 Rule 11(a) of the Rules Governing Section 2254 Cases. 28 9 1 A certificate of appealability may issue only if the applicant 2 makes a substantial showing of the denial of a constitutional right. 3 ' 2253(c)(2). Under this standard, a petitioner must show that 4 reasonable jurists could debate whether the petition should have 5 been resolved in a different manner or that the issues presented 6 were adequate to deserve encouragement to proceed further. Miller- 7 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 8 473, 484 (2000)). A certificate should issue if the Petitioner 9 shows that jurists of reason would find it debatable whether: (1) 10 the petition states a valid claim of the denial of a constitutional 11 right, and (2) the district court was correct in any procedural 12 ruling. 13 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 14 claims in the habeas petition, generally assesses their merits, and 15 determines whether the resolution was debatable among jurists of 16 reason or wrong. Id. An applicant must show more than an absence 17 of frivolity or the existence of mere good faith; however, the 18 applicant need not show that the appeal will succeed. Miller-El v. 19 Cockrell, 537 U.S. at 338 20 Here, to the extent that a certificate of appealability is 21 required for appellate review of this order, it does not appear that 22 reasonable jurists could debate whether the petition should have 23 been resolved in a different manner. Petitioner has not made a 24 substantial showing of the denial of a constitutional right. 25 Accordingly, the Court will decline to issue a certificate of 26 appealability. 27 28 10 1 VI. Disposition 2 In accordance with the foregoing analysis, it is ORDERED that: 3 1) Petitioner’s objections filed after the entry of judgment are DISREGARDED; and 4 5 2) Petitioner’s motion for reconsideration is DENIED; and 6 3) The Court DECLINES to issue a certificate of appealability. 7 8 IT IS SO ORDERED. 9 Dated: June 30, 2014 10 SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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