(HC) Hammond v. Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DELVON HAMMOND, No. 2:19-cv-01578-TLN-EFB 12 Petitioner, 13 v. ORDER 14 WARDEN, 15 Respondent. 16 17 This matter is before the Court pursuant to Petitioner Delvon Hammond’s (“Petitioner”) 18 Motion for Reconsideration of the Court’s April 28, 2020 Order dismissing this case and 19 declining to issue a certificate of appealability. (ECF No. 10.) For the reasons set forth below, 20 Petitioner’s motion is DENIED. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Petitioner, a California state prisoner proceeding pro se, initiated this Petition pursuant to 3 28 U.S.C. § 2254 on August 14, 2019. (ECF No. 1.) On March 19, 2020, the magistrate judge 4 issued Findings and Recommendations to dismiss the Petition due to lack of jurisdiction because 5 the Petition was a second or successive petition. (ECF No. 7.) Petitioner failed to file any 6 objections to the Findings and Recommendations and on April 28, 2020, the Court adopted the 7 Findings and Recommendations in full and dismissed the Petition. (ECF No. 8.) On May 18, 8 2020, Petitioner filed the instant Motion for Reconsideration. (ECF No. 10.) 9 II. STANDARD OF LAW 10 The Court may grant reconsideration under either Federal Rule of Civil Procedure 59(e) or 11 60(b). See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A motion to alter or 12 amend a judgment under Rule 59(e) must be filed no later than 28 days after the entry of 13 judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a motion 14 to alter or amend judgment under Rule 59(e) if it is filed within 28 days of entry of judgment; 15 otherwise, it is treated as a Rule 60(b) motion for relief from judgment or order. Rishor v. 16 Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see Am. Ironworks & Erectors, Inc. v. N. Am. 17 Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Here, Petitioner’s motion was filed within 18 twenty-eight days of entry of judgment and is therefore construed as a motion to alter or amend 19 the judgment under Rule 59(e). 20 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 21 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 22 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011), citing McDowell v. Calderon, 197 F.3d 1253, 1255 23 n.1 (9th Cir. 1999). Nevertheless, a motion for reconsideration under Rule 59(e) “should not be 24 granted, absent highly unusual circumstances, unless the district court is presented with newly 25 discovered evidence, committed clear error, or if there is an intervening change in the controlling 26 law.” McDowell, 197 F.3d at 1255. Further, “[a] motion for reconsideration may not be used to 27 raise arguments or present evidence for the first time when they could reasonably have been 28 / / / 1 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 2 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). 3 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: 4 (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 5 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 6 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 7 justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111. 8 III. ANALYSIS 9 Petitioner fails to advance any argument that establishes he is entitled to relief under Rule 10 59(e). Petitioner appears to argue reconsideration is appropriate and he should have been given 11 additional time to file a response as a matter of course, due to his pro se status. (ECF No. 10 at 12 1.) This argument is unavailing. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (pro se 13 litigants are bound by the rules of procedure, even though pleadings are liberally construed in 14 their favor). Furthermore, Petitioner does not present newly discovered evidence or argument 15 suggesting this matter should not have been dismissed or that a certificate of appealability should 16 issue. Nor does he identify any change in circumstances or controlling law to warrant the 17 extraordinary relief he seeks. Marlyn Nutraceuticals, Inc., 571 F.3d at 880. Finally, the Court 18 has carefully reviewed the entire file, and still finds the Findings and Recommendations (ECF 19 No. 7) to be supported by the record and by proper analysis. See Burton v. Stewart, 549 U.S. 147 20 (2007) (a court lacks jurisdiction to consider a second or successive petition); Cooper v. 21 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Accordingly, Petitioner’s motion must be 22 denied. 23 IV. CONCLUSION 24 For the reasons discussed herein, Petitioner’s Motion for Reconsideration (ECF No. 10) is 25 hereby DENIED. 26 IT IS SO ORDERED. 27 DATED: June 15, 2020 28