(HC) Tashchyan v. Lizarraga ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NERSES TASHCHYAN, No. 1:18-cv-01242-DAD-JLT (HC) 12 Petitioner, 13 v. ORDER CONSTRUING PETITIONER’S MOTION TO SET ASIDE JUDGMENT AS A 14 J. LIZARRAGA, MOTION FOR RECONSIDERATION AND DENYING PETITIONER’S MOTION 15 Respondent. (Doc. No. 23) 16 17 This matter is before the court on petitioner’s motion to set aside judgment, which the 18 court will construe as a motion for reconsideration of the court’s November 7, 2019 order 19 denying his petition for writ of habeas corpus. (Doc. No. 23.) For the reasons discussed below, 20 petitioner’s motion will be denied. 21 BACKGROUND 22 Petitioner Nerses Tashchyan is a state prisoner proceeding pro se and in forma pauperis 23 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The matter 24 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 25 Rule 302. 26 On June 20, 2019, the assigned magistrate judge issued findings and recommendations 27 recommending that the petition be denied with prejudice due to petitioner’s failure to exhaust his 28 claims by first presenting them to the state’s highest court and due to petitioner’s failure to state a 1 cognizable claim for federal habeas relief. (Doc. No. 20.) On November 7, 2019, the 2 undersigned adopted those findings and recommendations in full, dismissed the petition for writ 3 of habeas corpus with prejudice, and directed the Clerk of the Court to close this case. (Doc. No. 4 21.) Judgment was entered in accordance with that order. (Doc. No. 22.) 5 On December 6, 2019, petitioner filed a motion to set aside judgment, citing Rule 60 of 6 the Federal Rules of Civil Procedure, in which petitioner appears to be requesting reconsideration 7 of the court’s order dismissing his petition. (Doc. No. 23.) Accordingly, the court will construe 8 petitioner’s motion as a motion for reconsideration. 9 LEGAL STANDARD 10 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 11 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 12 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 13 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 14 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 15 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 16 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 17 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 18 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 19 Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 20 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking 21 reconsideration under Rule 60, the moving party “must demonstrate both injury and 22 circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and 23 citation omitted). 24 “A motion for reconsideration should not be granted, absent highly unusual 25 circumstances, unless the district court is presented with newly discovered evidence, committed 26 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 27 raise arguments or present evidence for the first time when they could reasonably have been 28 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 1 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 2 original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or 3 different facts or circumstances are claimed to exist which did not exist or were not shown” 4 previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 5 not shown” at the time the substance of the order which is objected to was considered. 6 DISCUSSION 7 Petitioner moves for reconsideration of the court’s November 7, 2019 order (Doc. No. 21) 8 dismissing his petition for a writ of federal habeas corpus with prejudice. (Doc. No. 23.) 9 First, petitioner contends that the court was mistaken when it determined that he had failed 10 to exhaust his claims by first presenting them to the state’s highest court, and he asserts that this is 11 the kind of oversight that Rule 60 is designed to correct. (Doc. No. 23 at 1.) Petitioner has 12 attached a copy of the “filed” stamped copy of his habeas application to the California Supreme 13 Court bearing case number S251968, which was filed with the Clerk of the California Supreme 14 Court on October 15, 2018. (Doc. No. 23 at 1.) 15 Contrary to petitioner’s assertion, the court’s determination that petitioner had failed to 16 exhaust his claims by first presenting them to the state’s highest court was not based on a mistake or 17 oversight by the court in not considering the fact that he filed a state habeas petition with the 18 California Supreme Court. In fact, the findings and recommendations, which the court adopted in full 19 in its November 7, 2019 order, referenced petitioner’s state habeas application. (See Doc. No. 20 20 at 2) (“[Petitioner] filed another habeas petition in the California Supreme Court on October 15, 21 2018, and that petition was denied on March 13, 2019.”). However, despite filing his habeas 22 applications in the California Court of Appeal and the California Supreme Court, petitioner did not 23 properly present his claims because, as the California Court of Appeal explained in its order denying 24 petitioner’s application without prejudice, “[he] failed to show that he exhausted his remedy of filing 25 a petition for writ of habeas corpus in the superior court.” (See Doc. No. 20 at 2 (emphasis added).) 26 Thus, the court finds that there was no error or mistake in the its order dismissing petitioner’s habeas 27 petition on the grounds that he failed to exhaust his claims by first properly presenting them to the 28 state’s highest court. 1 Second, and more importantly, without any supporting evidence or argument, petitioner 2 || asserts in conclusory fashion that the constitutional violations he asserted in his federal habeas 3 | petition are cognizable habeas claims and he should not have been denied habeas relief. (Doc. 4 | No. 23 at 1.) Petitioner had asserted three grounds for federal habeas relief in his petition filed 5 | with this court: (1) the trial court abused its discretion and violated petitioner’s due process rights 6 | under the Fourteenth Amendment of the United States Constitution when it relieved counsel 7 | without just cause; (2) ineffective assistance of counsel in violation of the Sixth Amendment of 8 | the United States Constitution; and (3) actual innocence of Ist degree murder due to dementia, 9 | lack of deliberation and thus factual innocence. (Doc. No. 23 at 5,7, 8.) 10 While not entirely clear from petitioner’s motion for reconsideration, to the extent 11 | petitioner believes that this court did not consider the merits of his federal habeas claim after 12 | determining that he had failed to exhaust his claims, petitioner is mistaken. Pursuant to 28 U.S.C. 13 |} § 2254(b)(2), the court considered the merits of each of petitioner’s asserted grounds and denied 14 | petitioner’s application for federal habeas relief on the merits and with prejudice 15 | “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the 16 || State.” (Doc. No. 20 at 9, 11.) Petitioner has not provided the court with any basis that would 17 || warrant reconsideration of its prior ruling. 18 CONCLUSION 19 Because petitioner has not demonstrated that the court’s prior order was erroneous in any 20 || respect, the court finds no basis to grant the requested relief. Petitioner’s motion for 21 | reconsideration (Doc. No. 23) is therefore denied. 22 | IT IS ORDERED. me □ 23 ft ff ja £3 Dated: _ March 30, 2020 eee Te — 24 UNITED STATES DISTRICT JUDGE 25 26 27 28