(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 SECOND REQUEST FOR RECONSIDERATION 14 STEVEN LAKE, Warden, (Doc. No. 18) 15 Respondent. 16 17 Petitioner Cecil Dewitt Nelson is a federal prisoner proceeding pro se and in forma 18 pauperis with a now closed petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The 19 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 20 Local Rule 302. 21 Before the court is petitioner’s second request for reconsideration (Doc. No. 18; see also 22 Doc. No. 14) of the undersigned’s February 10, 2020 order adopting in full (Doc. No. 10) the 23 assigned magistrate judge’s November 22, 2019 findings and recommendations (Doc. No. 6). In 24 the February 10, 2020 order, the court denied petitioner’s application for writ of habeas corpus for 25 lack of jurisdiction. (Doc. No. 10.) 26 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 27 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 28 for the following reasons: 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 3 under Rule 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 the pending motion, petitioner includes a letter from the U.S Bureau of Prisons 19 corroborating his earlier claim1 that he never received the magistrate judge’s findings and 20 recommendations and was therefore unable to file objections to the findings and 21 recommendations. (Doc. No. 18 at 1, 4.) This does not change the court’s analysis. Even if the 22 court construes the arguments that petitioner raises in his pending motion as objections to the 23 magistrate judge’s findings and recommendations, petitioner’s argument is still unavailing. Like 24 in his first request for reconsideration, petitioner contends that the court has jurisdiction over his 25 petition. (Id. at 2.) This time, he argues that an exception applies here allowing him to proceed 26 under § 2241 because § 2255 provides an inadequate or ineffective remedy. (Id.) However, he 27 1 Petitioner had alleged in his first request for reconsideration that he had not received the 28 magistrate judge’s findings and recommendations. (Doc. No. 14.) MADE fe LDU VM AITO SINS MVOC PC a ee □□□ VM VIG 1 | provides no applicable reasoning, analysis, or facts to support his argument. (/d.) 2 As the court explained in its order denying petitioner’s first request for reconsideration, 3 | jurisdiction over a challenge to a petitioner’s federal conviction or sentence under 28 U.S.C. § 4 | 2255 lies solely with the sentencing court. See Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 5 | 2006). Although a very narrow exception exists which would allow him to proceed via § 2241, 6 | petitioner fails to satisfy that exception because he does not show that § 2255 provided an 7 | inadequate or ineffective remedy. See Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). 8 Having considered the arguments presented by petitioner in his motion on their merits, 9 | plaintiff's second request for reconsideration (Doc. No. 18) is denied. The court will entertain no 10 | further filings in this closed action. 11 | IT IS SO ORDERED. si am 2 Dated: _ April 24, 2020 J aL A 4 7 a 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28