Gordon v. Lizarraga ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHARLES DAVID GORDON, Case No. 12-cv-00769-PJH 8 Petitioner, ORDER DENYING FED.R.CIV.P. 59(e) 9 v. MOTION TO ALTER OR AMEND JUDGMENT; VACATING MOTION 10 JOE A. LIZARRAGA, HEARING; DENYING MOTION FOR LEAVE TO FILE RESPONSE TO 11 Respondent. OBJECTION TO EVIDENCE 12 13 14 Before the court is the motion to alter or amend judgment pursuant to Federal Rule 15 of Civil Procedure 59(e) filed by represented petitioner Charles David Gordon, known as 16 Angie Gordon. Dkt. 81 (“Mot.”). Respondent filed an opposition on February 3, 2020. 17 Dkt. 86 (“Opp.”). Petitioner filed a reply on February 6, 2020. Dkt. 87. Respondent filed 18 an objection to evidence submitted in support of the reply. Dkt. 88. Petitioner filed an 19 administrative motion for leave to file a response to the objection to evidence. Dkt. 89. 20 The court determines that the matter is suitable for decision without oral argument and is 21 submitted on the papers. The motion hearing noticed for April 22, 2020 is VACATED. 22 LEGAL STANDARD 23 Rule 59(e) of the Federal Rules of Civil Procedure permits a party to seek an order 24 altering or amending a judgment. Rule 59(e) does not describe the conditions under 25 which a court should reconsider a prior decision, but under Ninth Circuit authority, it is 26 appropriate to alter or amend a judgment under Rule 59(e) if “‘(1) the district court is 27 presented with newly discovered evidence, (2) the district court committed clear error or 1 in controlling law.’” United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 2 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 3 2001)). 4 DISCUSSION 5 In moving to alter or amend the judgment, petitioner contends that the court failed 6 to address her argument that the state court’s application of the timeliness bar to Claims 7 1, 2, 3, and 9 was surprising, unfair, arbitrary and served to evade federal review of her 8 claims, where she timely filed a habeas petition in Napa County Superior Court on 9 November 22, 2011, within one year of issuance of the remittitur by the court of appeal 10 on December 16, 2010, and where the superior court’s April 24, 2012, order to show 11 cause rejected respondent’s argument that the claims in the amended habeas petition 12 were procedurally barred and required a full analysis of the merits of the claims. Mot. at 13 4-5; Traverse at 17–18 and n.7 (citing In re Bower, 38 Cal. 3d 865, 873 n.3 (1985)). 14 Petitioner concedes that the Supreme Court has established the adequacy and 15 independence of California’s timeliness requirement to bar federal habeas review in 16 noncapital cases, but contends that the timeliness bar was specifically inadequate as 17 applied in her case. Traverse at 17–19 (citing Walker v. Martin, 562 U.S. 307, 315–18, 18 320, 321 (2011); Lee v. Kemna, 534 U.S. 362, 385 (2002)). 19 Respondent argues that petitioner has not demonstrated manifest error of law or 20 fact in support of her Rule 59(e) motion, citing its earlier-filed response to petitioner’s 21 argument that she substantially met the requirements of the timeliness bar to oppose 22 procedural default. Opp. at 3. In support of dismissal of Claims 1, 2, 3, and 9 on 23 procedural default grounds, respondent addressed petitioner’s contention that her 24 habeas claims were timely because she filed her first state habeas petition within one 25 year of issuance of the remittitur. Respondent argued that despite knowing the factual 26 and legal bases of Claims 1, 2, 3, and 9 at the time of trial, petitioner did not raise the 27 claims either at trial or on appeal, and “made no effort in her state habeas petition to 1 over two years later.” Obj. to New Exhibits and Response to New Arguments Raised in 2 Traverse (dkt. 40) at 5–7 and n. 5. 3 The court dismissed Claims 1, 2, 3, and 9 as procedurally defaulted on the ground 4 of untimeliness and, on separate grounds, denied those claims on the merits upon de 5 novo review. Dkt. 79 at 18, 19–28. In rejecting petitioner’s argument as articulated in the 6 Supplemental Traverse that application of the timeliness bar was specifically inadequate 7 as applied in her case, the court found that she had failed to show that the state court’s 8 denial of Claims 2 and 9 as untimely was inadequate for lacking fair or substantial 9 support in prior state law. Dkt. 79 at 17. To the extent that the court did not expressly 10 discuss petitioner’s separate Traverse argument that her state court habeas petition was 11 filed in superior court within one year of issuance of the remittitur so as to substantially 12 meet the requirements of the timeliness requirement and that the procedural bar served 13 to evade federal review, petitioner fails to show clear or manifest error warranting Rule 14 59(e) relief. In light of the record, the state court’s application of the timeliness bar to 15 Claims 1, 2, 3 and 9 was not surprising, unfair, and arbitrary, as petitioner contends. As 16 the court noted in the procedural history of the case, dkt. 79 at 9, petitioner filed a habeas 17 petition in the court of appeal on January 3, 2012, before filing an amended petition in the 18 Napa County Superior Court on January 20, 2012. See Answer, Suppl. Ex. K, Vol. 4 19 (dkt. 42-4) at 1593. On January 17, 2012, the court of appeal denied the petition without 20 prejudice. See Answer, Suppl. Ex. K, Vol. 1 (dkt. 42-1) at 0400. The court summarized 21 the procedural history, dkt. 79 at 9, to reflect that “[t]he state appellate court noted that 22 Gordon raised new arguments regarding the timeliness of her habeas petition that were 23 not previously presented to the Napa County Superior Court, and as a result, ruled that 24 Gordon had not exhausted her habeas remedy with the Superior Court,” as recorded on 25 the public docket: 26 BY THE COURT:* Petitioner's request for habeas corpus relief in the superior court was denied for various reasons, including 27 but not limited to petitioner's failure to demonstrate that the appears to contain only one short paragraph discussing the 1 petition's timeliness. In contrast, the petition filed in this court 2 contains many pages of argument concerning the petition's timeliness. Petitioner did not refile his habeas petition in the 3 superior court to present those arguments (and others related 4 to the basis for the superior court's denial of habeas relief). Instead, petitioner now seeks relief in this court, raising those 5 arguments to this court in the first instance. Under the circumstances, petitioner has not meaningfully exhausted his 6 superior court habeas remedy. (See In re Steele (2004) 32 7 Cal.4th 682, 692; In re Hillery (1962) 202 Cal.App.2d 293, 294.) Consequently, the petition for writ of habeas corpus is denied 8 without prejudice to being refiled in the Napa County Superior 9 Court, to permit petitioner to cure the defects identified by the superior court in its order denying habeas relief. In light of the 10 ruling above, petitioner's application for permission to file an oversized memorandum to the petition for writ of habeas 11 corpus is moot. However, in the event petitioner again seeks 12 habeas relief in this court, the court advises counsel that it does not foresee granting petitioner permission to file a 13 memorandum exceeding 100 pages. * Before Simons, Acting 14 P.J., Needham, J. and Bruiniers, J. 15 In re Gordon, No. A134162 (Cal. Ct. App. 1st Dist. Jan. 17, 2012) (available at 16 https://appellatecases.courtinfo.ca.gov/). 17 Petitioner fails to mention or address the court of appeal’s finding that the January 18 3, 2012, habeas petition presented new timeliness arguments that were unexhausted 19 because they had not been presented to the superior court, which had denied the 20 November 22, 2011, habeas petition on the ground that “it does not provide any 21 explanation for the substantial delay in its filing.” Second Am. Pet., Ex. 48 (dkt. 16-3). In 22 light of the state court record, particularly where petitioner presented timeliness 23 arguments in the first instance in the January 3, 2012 petition in the court of appeal, 24 rather than exhausting those grounds for relief in the habeas proceedings in the superior 25 court, petitioner fails to demonstrate that the state court’s application of the timeliness bar 26 to Claims 1, 2, 3 and 9 was surprising, unfair, arbitrary, novel or unforeseeable, such that 27 it was inadequate to bar federal habeas review. See Martin, 562 U.S. at 316 and n.4 1 the “limited category” of “exceptional cases in which exorbitant application of a generally 2 sound rule renders the state ground inadequate” under Lee, 534 U.S. at 376). 3 Furthermore, petitioner has offered no authority in support of her argument that the 4 state court’s application of seemingly contradictory procedural bars as alternative 5 grounds for denying relief should be inferred as a failure by the state courts to consider 6 the propriety of applying those separate, independent bars. Mot. at 5; Traverse at 17–19. 7 Petitioner has not demonstrated clear or manifest error warranting alteration or 8 amendment of the judgment. 9 Respondent’s objection to the unpublished superior court order submitted in 10 support of petitioner’s reply as newly submitted evidence is OVERRULED, dkt. 88, 11 though the court notes that the superior court order carries little to no authoritative weight 12 in light of the published state court authority cited in the briefs. Petitioner’s motion for 13 leave to file a response to the objection, dkt. 89, is DENIED. 14 CONCLUSION 15 For the reasons set forth above, petitioner’s motion to alter or amend the judgment 16 pursuant to Fed. R. Civ. P. 59(e) is DENIED. 17 IT IS SO ORDERED. 18 Dated: February 18, 2020 19 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 20 United States District Judge 21 22 23 24 25 26 27