The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
On January 30, 2012, this court granted respondent's motion to dismiss and entered judgment. Petitioner has now moved for reconsideration under Fed. R. Civ. P. 59(e), or, in the alternative, that a certificate of appealability issue. For the reasons outlined below, the motion for reconsideration is denied, and the request for a certificate of appealability is granted.
In the January 30, 2012 order, this court found that the petition was untimely because it had not been filed within the time allowed under 28 U.S.C. § 2244(d)(1)(A). The statute requires that a federal petition must be filed within 1 year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Reviewing state law, this court determined that petitioner's state court conviction was final 90 days after the denial of petitioner's motion to transfer in the state Court of Appeals.
Petitioner now argues, without authority, that this court's conclusions are incorrect and lead to an anomalous result, because such a timetable would require misdemeanor defendants to file simultaneous petitions: for habeas corpus in the state Supreme Court, and for certiorari in the federal Supreme Court. Petitioner argues that such a procedure "would be improper on its face, because the state judgment would not be viewed as final while a necessary and properly filed petition is pending in the state high court." See Doc. No. 15, p. 3. Petitioner instead argues, as he did in his original opposition, that the additional 90 day allowance should be counted from the date when the highest state court denied the habeas petition petitioner filed to exhaust his state remedies.
Plaintiff has moved for reconsideration under Federal Rule of Civil Procedure 59(e). "Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999), citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Petitioner cites no new evidence or law in support of his application.*fn1
Instead, he appears to argue that this court has committed clear error, because the upshot of this court's analysis would create some awkwardness in the management of a misdemeanor defendant's direct and collateral review. In light of petitioner's absence of authority in support of his position, this court cannot find that its determination, made pursuant to what this court considers binding precedent, was clearly erroneous. See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 2189 (1982); In re Van Dusen, 654 F.3d 838, 845 (9th Cir. 2011) (in mandamus analysis, absence of controlling precedent weighs strongly against finding of clear error). Moreover, the undersigned confirms his prior analysis.
However, this court is mindful that there appears to be no case from the Court of Appeals on this issue, and that guidance on the appropriate procedure would be beneficial. Cf. Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995) (requiring misdemeanor defendants to exhaust constitutional claims to California Supreme Court through habeas petition even though no direct appeal to that court is available).*fn2 Accordingly, this court will grant petitioner's alternative application for a certificate of appealability.
Good cause appearing, IT IS HEREBY ORDERED that:
(1) petitioner's motion for reconsideration is DENIED; and
(2) petitioner's request for a certificate of appealability is GRANTED on the issue of whether petitioner's federal petition was ...