(HC) Nelson v. Lake ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL DEWITT NELSON, No. 1:19-cv-01487-DAD-SKO (HC) 12 Petitioner, 13 v. ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 14 STEVEN LAKE, Warden, (Doc. No. 14) 15 Respondent. 16 17 Petitioner Cecil Dewitt Nelson is a federal prisoner proceeding pro se and in forma 18 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was 19 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 20 302. 21 Before the court is petitioner’s request for reconsideration (Doc. No. 14) of the 22 undersigned’s February 10, 2020 order adopting in full (Doc. No. 10) the assigned magistrate 23 judge’s November 22, 2019 findings and recommendations (Doc. No. 6). In that order, the court 24 denied petitioner’s application for writ of habeas corpus for lack of jurisdiction. (Doc. No. 10.) 25 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 26 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 27 for the following reasons: 28 ///// 1 (1) mistake, inadvertence, surprise, or excusable neglect; 2 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 3 59(b); 4 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 5 (4) the judgment is void; 6 (5) the judgment has been satisfied, released, or discharged; it is 7 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 8 (6) any other reason that justifies relief. 9 10 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, 11 typically “not more than one year after the judgment or order or the date of the proceeding.” Id. 12 “A motion for reconsideration should not be granted, absent highly unusual circumstances, unless 13 the district court is presented with newly discovered evidence, committed clear error, or if there is 14 an intervening change in the controlling law,” and it “may not be used to raise arguments or 15 present evidence for the first time when they could reasonably have been raised earlier in the 16 litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th 17 Cir. 2009) (internal quotation marks and citations omitted) (emphasis in original). 18 In his motion, petitioner states he never received the magistrate judge’s findings and 19 recommendations and was therefore unable to file objections to them.1 (Doc. No. 14 at 1.) In any 20 event, in his motion for reconsideration, petitioner asserts that this court does have jurisdiction 21 over his petition, but provides no applicable reasoning to support that conclusory assertion. (Id. 22 at 1–2.) As the court previously stated, jurisdiction over a challenge to a petitioner’s federal 23 conviction or sentence under 28 U.S.C. § 2255 lies solely with the sentencing court. See Stephens 24 v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). Although a very narrow exception exists which 25 would allow him to proceed via § 2241, petitioner failed to satisfy that exception because he did 26 27 1 The court has reviewed its docket which reflects service of the November 22, 2019 findings and recommendations by mail to plaintiff at his address of record. Moreover, that mailing was not 28 returned to the court by the U.S. Postal Service. 1 | not show that § 2255 provided an inadequate or ineffective remedy. See Ivy v. Pontesso, 328 F.3d 2 | 1057, 1059 (9th Cir. 2003). 3 Accordingly, and having considered the arguments presented by petitioner in his motion 4 | on their merits, plaintiff's motion for reconsideration (Doc. No. 14) is denied. 5 | IT IS SO ORDERED. a 6 Li. wh F Dated: _ April 1, 2020 we fo 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28