Davis v. Bonta ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAVIN DAVIS, Case No.: 21-CV-2042 JLS (BGS) 12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTON FOR RELIEF FROM JUDGMENT AND DENYING 14 ROB BONITA, California Attorney CERTIFICATE OF APPEALABILITY General, 15 Respondent. (ECF No. 9) 16 17 18 On December 7, 2021, Petitioner Gavin Davis filed a pro se Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner indicated he is 20 challenging a conviction from the San Diego County Superior Court for which, on June 7, 21 2018, he was sentenced to time served and three years probation, and that his sentence had 22 completely expired on June 6, 2021. (Id. at 1–2.) 23 On December 9, 2021, the Court dismissed the Petition for lack of jurisdiction 24 because Petitioner was not in actual or constructive custody at the time the Petition was 25 filed. (ECF No. 6.) The Court declined to issue a Certificate of Appealability and entered 26 a final judgment of dismissal. (Id. at 2; ECF No. 7.) 27 On December 20, 2021, Petitioner filed the instant Motion for Relief from Judgment 28 pursuant to Federal Rule of Civil Procedure 59(e). (ECF No. 9.) Petitioner argues that the 1 Petition is timely because he has been diligently pursuing remedies available in state court 2 and is entitled to tolling of the one-year statute of limitations applicable to federal habeas 3 petitions as set forth in 28 U.S.C. § 2244. (Id. at 2–3, 9–11.) 4 Petitioner’s Rule 59 motion, filed 11 days after entry of judgment, is timely. See 5 Fed. R. Civ. P 59(b) (providing that such motion “must be filed no later than 28 days after 6 the entry of the judgment”). “A district court may grant a Rule 59(e) motion if it ‘is 7 presented with newly discovered evidence, committed clear error, or if there is an 8 intervening change in the controlling law.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 9 2014) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)). 10 “Although Rule 59(e) permits a district court to reconsider and amend a previous order, 11 the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and 12 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 13 890 (9th Cir. 2000) (internal quotation marks omitted). 14 Petitioner does not disagree with or challenge the Court’s finding that he was not in 15 custody under the state court conviction he is challenging when he filed his Petition. As 16 the Court noted in its prior Order of dismissal: “Subject matter jurisdiction under the 17 federal habeas corpus statute, 28 U.S.C. § 2254(a), is limited to those persons ‘in custody 18 pursuant to the judgment of a State.’” (ECF No. 6 at 1–2 (quoting Brock v. Weston, 31 19 F.3d 887, 889 (9th Cir. 1994)).) The Court informed Petitioner that: “It is a jurisdictional 20 requirement that, at the time a habeas petition is filed, ‘the habeas petitioner be ‘in custody’ 21 under the conviction or sentence under attack.’” (Id. at 2 (quoting Maleng v. Cook, 490 22 U.S. 488, 490–91 (1989)).) 23 Here, Petitioner has not challenged the finding that he is not in custody for the 24 conviction he is challenging in his Petition but merely argues that the Petition was filed 25 within the one-year statute of limitations, which is an issue unrelated to whether he was in 26 custody at the time he filed his federal Petition. See Maleng, 490 U.S. at 491 (“We have 27 never held, however, that a habeas petitioner may be ‘in custody’ under a conviction when 28 the sentence imposed for that conviction has fully expired at the time the petition is filed.”); 1 at 492 (“While we have very liberally construed the ‘in custody’ requirement for 2 ||purposes of federal habeas, we have never extended it to the situation where a habeas 3 || petitioner suffers no present restraint from a conviction.”). As a result, this Court lacks 4 ||subject matter jurisdiction over the Petition, and Petitioner is not entitled to relief from 5 ||judgment under Rule 59(e). 6 A certificate of appealability is required to appeal the denial of a Rule 59 motion for 7 || relief from judgment arising from the denial of a habeas petition. United States v. Lambros, 8 F.3d 1034, 1036 (8th Cir. 2005). The Court finds a certificate of appealability 9 || inappropriate with respect to the denial of Petitioner’s motion because no “jurists of reason 10 || would find it debatable whether the district court abused its discretion in denying” the 11 ||motion. United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015). 12 For the reasons stated above, Petitioner’s Motion for Relief for Judgment (ECF No. 13 ||9) pursuant to Rule 59(e) is hereby DENIED. Further, a Certificate of Appealability is 14 || DENIED. 15 IT IS SO ORDERED. 16 ||Dated: December 27, 2021 tt 17 pee Janis L. Sammartino 18 United States District Judge 19 20 21 22 23 24 25 26 27 28