(HC) Bland v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA DAVIS BLAND, No. 1:18-cv-01141-DAD-EPG-HC 12 Petitioner, ORDER DENYING PETITIONER’S MOTION 13 v. FOR RECONSIDERATION AND DECLINING TO ISSUE CERTIFICATE OF 14 KEN CLARK, APPEALABILITY 15 Respondent. (Doc. No. 61) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On January 31, 2020, the assigned magistrate judge issued 19 findings and recommendation recommending that respondent’s motion to dismiss be granted and 20 the petition be dismissed as untimely. (Doc. No. 50.) On April 14, 2020, the court dismissed the 21 petition and entered judgment. (Doc. Nos. 59, 60.) On June 8, 2020, petitioner filed the instant 22 motion for reconsideration. (Doc. No. 61.) 23 The court construes the motion for reconsideration as having been filed under Rule 60(b) 24 of the Federal Rules of Civil Procedure. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. 25 Corp., 248 F.3d 892, 898–99 (9th Cir. 2001) (a motion for reconsideration is treated as a motion 26 under Federal Rule of Civil Procedure 59(e) if it is filed timely under that rule; if it is untimely, it 27 is construed as a motion under Federal Rule of Civil Procedure 60(b)). Under Rule 60(b), the 28 court may relieve a party from a final judgment for any of 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 Petitioner does not challenge the reasons underlying the order dismissing his habeas 11 petition as having been untimely filed. (Doc. Nos. 59, 61.) Rather, petitioner appears to argue 12 that he is a “sovereign” and has sovereign immunity under California law, but the state trial court 13 “fraudulently concealed” the law of sovereign immunity and tried him for possessing and 14 controlling child pornography without jurisdiction. (Doc. No. 61 at 1-3; see also Doc. No. 59 at 15 1.) Petitioner’s reasoning conflates the legal tenet that a state, such as the State of California, is a 16 sovereign with the fact that he (and each individual) therefore is also a sovereign. There is no 17 legitimate legal basis to petitioner’s position. See N. Ins. Co. of New York v. Chatham Cty., Ga., 18 547 U.S. 189, 193–94 (2006). Accordingly, the court finds that petitioner is not entitled to relief 19 pursuant to Rule 60(b). 20 Finally, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to 21 appeal a district court’s denial of relief, and an appeal is only allowed in certain circumstances. 22 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. The Ninth Circuit has 23 held that a certificate of appealability “is required to appeal the denial of a Rule 60(b) motion for 24 relief from judgment arising out of the denial of” a § 2254 or § 2255 motion. United States v. 25 Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015); Payton v. Davis, 906 F.3d 812, 818 n.8 (9th Cir. 26 2018). The court finds that granting a certificate of appealability to petitioner is inappropriate 27 here, for no “jurists of reason would find it debatable whether the district court abused its 28 discretion in denying the Rule 60(b) motion,” nor would jurists of reason “find it debatable 4:40 UV VLEET □□□ SMU VI Ie OY VV VI 1 | whether the underlying section 2255 motion states a valid claim of the denial of a constitutional 2 | right.” Winkles, 795 F.3d at 1143. 3 For the reasons set forth above: 4 1. Petitioner’s motion for reconsideration (Doc. No. 61) is denied; and 5 2. The court declines to issue a certificate of appealability. © | Ir IS SO ORDERED. ~ 7 li ja 3 Dated: _ July 8, 2020 eee Te > 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28