(HC) Dunbar v. Superior Court of California, County of Sacramento ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EDDIE NELSON DUNBAR, Case No. 2:21-cv-01022-WBS-JDP (HC) 11 Petitioner, FINDINGS AND RECOMMENDATIONS THAT PETITIONER’S MOTION FOR 12 v. RELIEF FROM JUDGMENT AND TO APPOINT COUNSEL BE DENIED 13 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO, OBJECTIONS DUE IN FOURTEEN DAYS 14 Respondent. ECF No. 14 15 16 17 This petition under section 2254 was dismissed without prejudice on October 6, 2021, 18 after it was determined to be successive; a previous petition had been denied at the district level in 19 2005 and the denial affirmed by the Court of Appeals in 2008. ECF No. 10 at 1-2; ECF No. 12. 20 Petitioner has now filed a motion for relief from judgment and to appoint counsel, arguing that 21 the district court failed to recognize that the dismissed petition was based on evidence that could 22 not have been obtained until 2019. ECF No. 14. The motion fails, however, because petitioner 23 did not obtain authorization from the Court of Appeals for a successive petition. 24 A grant of a motion to amend or alter judgment under Rule 59(e) is an “extraordinary 25 remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” 26 Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James Wm. 27 Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 2000)). A motion to amend or alter 28 judgment should be granted only where a court “‘is presented with newly discovered evidence, 1 committed clear error, or if there is an intervening change in the controlling law.’” McDowell v. 2 Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. Partners v. 3 Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 4 Petitioner’s argument that his petition is predicated on evidence that could only have been 5 obtained in 2019 does not warrant relief from judgment. Any successive petition must be 6 authorized by the Court of Appeals before proceeding. See 28 U.S.C. § 2244(b)(3)(A). Both the 7 magistrate and district judges have informed petitioner of this prerequisite. ECF No. 10 at 2; ECF 8 No. 12 at 2. Petitioner does not argue that he has fulfilled this requirement; instead he advances 9 his argument that the petition cannot be successive since it is based on new evidence. ECF No. 10 14 at 1-2. Petitioner’s argument lacks support in the law; a petition is considered successive if it 11 challenges the same detention as a prior petition. See 28 U.S.C. § 2244(a). New availability of 12 favorable evidence is a reason to allow a successive petition, but it does not relieve the petitioner 13 of applying for authorization from the circuit. 14 In denying the motion for relief from judgment, I necessarily recommend denying 15 petitioner’s request for appointment of counsel. 16 For the foregoing reasons, I recommend that petitioner’s motion for relief from judgment 17 and for appointment of counsel, ECF No. 14, be denied. 18 These findings and recommendations are submitted to the U.S. district judge presiding 19 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 20 service of the findings and recommendations, the parties may file written objections to the 21 findings and recommendations with the court and serve a copy on all parties. That document 22 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 23 presiding district judge will then review the findings and recommendations under 28 U.S.C. 24 § 636(b)(1)(C). 25 26 27 28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ November 29, 2022 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28