(HC) Villarreal v. People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LIONZO ANGEL VILLARREAL, No. 2:18-cv-3239-TLN-EFB 12 Petitioner, 13 v. ORDER 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 This matter is before the Court pursuant to Petitioner Lionzo Angel Villarreal’s 19 (“Petitioner”), “Request for Late Filing of Motion to Object to Dismissal of Claim” (ECF No. 6), 20 which the Court construes as a motion for reconsideration pursuant to Federal Rule of Civil 21 Procedure 59(e). For the reasons set forth below, Petitioner’s motion is DENIED. 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 On December 19, 2019, Petitioner, a state prisoner proceeding through counsel,1 filed an 24 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On 25 September 25, 2019, the magistrate judge recommended that petition be dismissed for failure to 26 state a cognizable federal claim. (ECF No. 3.) Objections to those recommendations were due 27 1 The docket reflects Petitioner was represented by counsel, Joseph Virgilio of The Justice 28 Firm; however, Petitioner has filed the instant motion pro se. 1 within fourteen days. (Id.) No objections were filed within that time and, on December 20, 2019, 2 the Court adopted Findings and Recommendations, dismissed the Petition, and entered judgment. 3 (ECF Nos. 4, 5.) Nearly a month later, on January 14, 2020, Petitioner filed a “Request for Late 4 Filing of Motion to Object to Dismissal of Claim.” (ECF No. 6.) The request was filed pro se 5 and argues that Petitioner’s counsel was ineffective in failing to object to the magistrate judge’s 6 recommendations. (Id. at 1–3.) The Court construes Petitioner’s “Request” as a motion for 7 reconsideration. 8 I. STANDARD OF LAW 9 The Court may grant reconsideration under Federal Rules of Civil Procedure 59(e) or 60. 10 See Schroeder v. McDonald, 55 F.3d 454, 458–59 (9th Cir. 1995). A motion to alter or amend a 11 judgment under Rule 59(e) must be filed no later than twenty-eight days after the entry of 12 judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for reconsideration” is treated as a motion 13 to alter or amend judgment under Rule 59(e) if it is filed within twenty-eight days of entry of 14 judgment; otherwise, it is treated as a Rule 60(b) motion for relief from judgment or order. 15 Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); see Am. Ironworks & Erectors, Inc. v. N. 16 Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001). Petitioner’s motion was filed within 17 twenty-eight days of entry of judgment and is therefore construed as a motion to alter or amend 18 the judgment under Rule 59(e). 19 Rule 59(e) does not list specific grounds for a motion to amend or alter, therefore the 20 district court enjoys considerable discretion in granting or denying the motion. Allstate Ins. Co. v. 21 Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. Calderon, 197 F.3d 1253, 1255 22 n.1 (9th Cir. 1999)). Nevertheless, a motion for reconsideration under Rule 59(e) “should not be 23 granted, absent highly unusual circumstances, unless the district court is presented with newly 24 discovered evidence, committed clear error, or if there is an intervening change in the controlling 25 law.” McDowell, 197 F.3d at 1255. Further, “[a] motion for reconsideration may not be used to 26 raise arguments or present evidence for the first time when they could reasonably have been 27 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 28 F.3d 873, 880 (9th Cir. 2009) (emphasis in original). 1 “In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: 2 (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment 3 rests; (2) if such motion is necessary to present newly discovered or previously unavailable 4 evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is 5 justified by an intervening change in controlling law.” Allstate Ins. Co., 634 F.3d at 1111. 6 II. ANALYSIS 7 Petitioner fails to advance any argument that establishes he is entitled to relief under Rule 8 59(e). More specifically, Petitioner argues that his counsel was ineffective in failing to object to 9 the magistrate judge’s recommendations. (ECF No. 6 at 1–3.) The Court finds this argument 10 unpersuasive. 11 The U.S. Court of Appeals for the Ninth Circuit has held that “[a]s a general rule, parties 12 are bound by the actions of their lawyers, and alleged attorney malpractice does not usually 13 provide a basis to set aside a judgment pursuant to [a motion for reconsideration].” Casey v. 14 Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (denying motion pursuant to Fed. R. Civ. P. 15 60(b)); see also Link v. Wabash R. Co., 370 U.S. 626, 633 (1962) (“Petitioner voluntarily chose 16 this attorney as his representative in the action, and he cannot now avoid the consequences of the 17 acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent 18 with our system of representative litigation, in which each party is deemed bound by the acts of 19 his lawyer-agent and is considered to have notice of all facts, notice of which can be charged 20 upon the attorney”) (internal quotation omitted); Walsh v. Countrywide Home Loans, Inc., No. C 21 09-0446 SBA, 2009 WL 4674049 (N.D. Cal. Dec. 2, 2009) (citing Casey, 362 F.3d at 1260, and 22 denying motion to reconsider based on incompetent counsel arguments under both Rule 59(e) and 23 60(b)). 24 The matter might be different if Petitioner’s counsel had committed negligence “so gross 25 that it [wa]s inexcusable.” Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012). However, 26 the Court finds no gross negligence occurred here. As correctly noted by the magistrate judge in 27 the Findings and Recommendations, Petitioner’s claims clearly involved only the application of 28 state sentencing laws, for which federal habeas relief is not available. (ECF No. 3 at 2.) Indeed, 1 Petitioner has not offered any cogent theory of what objections his counsel might have raised to 2 salvage his Petition. For this reason, Petitioner’s Motion for Reconsideration must be DENIED. 3 Further, the Court notes Petitioner has failed to advance any argument or new facts, 4 circumstances, or controlling law to warrant the extraordinary relief he seeks. Marlyn 5 Nutraceuticals, Inc., 571 F.3d at 880. For this reason, as well, Petitioner’s Motion for 6 Reconsideration must be DENIED. 7 III. CONCLUSION 8 Based on the foregoing, Petitioner’s “Request,” construed as a Motion for Reconsideration 9 (ECF No. 6), is DENIED. 10 IT IS SO ORDERED. 11 Dated: February 11, 2020 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28