(HC) Garcia v. Lozano ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS TOMAS GARCIA, No. 2:22-cv-00629-TLN-AC 12 Petitioner, 13 v. ORDER 14 JARED LOZANO, 15 Respondent. 16 17 By the Court’s Order filed July 25, 2022, this action was dismissed and the Court declined 18 to issue a certificate of appealability. (ECF No. 13.) Judgment was entered the same day. (ECF 19 No. 14.) On August 17, 2022,1 Petitioner filed a motion for reconsideration and request for 20 appointment of counsel. (ECF No. 15.) 21 A motion for reconsideration or relief from a judgment is appropriately brought under 22 either Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Fuller v. M.G. Jewelry, 23 950 F.2d 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). 24 The motion “is treated as a motion to alter or amend judgment under Federal Rule of Civil 25 Procedure 59(e) if it is filed [within the time provided by that Rule]. Otherwise, it is treated as a 26 Rule 60(b) motion for relief from a judgment or order.” Am. Ironworks & Erectors, Inc. v. N. 27 1 Since Petitioner is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox 28 rule. See Houston v. Lack, 487 U.S. 266, 276 (1988). 1 | Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001) (citations omitted). Since Petitioner’s 2 | motion for reconsideration was filed within twenty-eight days of the entry of judgment, the 3 | motion is considered under Rule 59(e). 4 “Under Rule 59(e), a motion for reconsideration should not be granted, absent highly 5 | unusual circumstances, unless the district court is presented with newly discovered evidence, 6 | committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. 7 | Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). Further, Local Rule 8 | 230(j) requires that a motion for reconsideration state “what new or different facts or 9 | circumstances are claimed to exist which did not exist or were not shown upon such prior motion, 10 | or what other grounds exist for the motion; and . . . why the facts or circumstances were not 11 | shown at the time of the prior motion.” L.R. 230G)(3)(4). 12 Petitioner asserts that his objections to the findings and recommendations were timely and 13 | that the adoption of the findings and recommendations was “unadulterated error.” (ECF No. 15.) 14 | As noted in the July 25, 2022 Order, Petitioner’s objections were considered despite their 15 | untimeliness and the claim that they should have been considered does not establish grounds for 16 || reconsideration of the Order. Furthermore, Petitioner’s conclusory assertion that the adoption of 17 | findings and recommendations was in error is not supported by any facts that would establish 18 | grounds for reconsidering the dismissal of the petition and decision not to issue a certificate of 19 | appealability. 20 Accordingly, IT IS HEREBY ORDERED that Petitioner’s Motion for Reconsideration 21 | and Request for Appointment of Counsel (ECF No. 15) is DENIED. 22 | DATED: September 19, 2022 23 fy /) 24 “ fs MA 29 Troy L. Nuhlep ] 26 United States District Judge 27 28