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Smith v. Small

United States District Court, S.D. California

August 18, 2014

LARRY SMALL, et al., Respondents.


CYNTHIA BASHANT, District Judge.

On November 24, 2010, Petitioner Christopher Dale Smith, a state prisoner represented by counsel, filed this Petition for Writ of Habeas Corpus under 28 U.S.C. ยง 2254 seeking relief from an indeterminate 25-years-to-life and a determinate 24-year sentence. On December 20, 2006, following a second trial, a jury found Petitioner guilty of: (1) one count of forcible rape; (2) two counts of forcible oral copulation; (3) burglary of an inhabited dwelling while a person was in the residence; and (4) false imprisonment by violence or menace.[1]

On October 21, 2013, United States Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("Report") recommending that this Court deny the petition in its entirety. (ECF No. 31.) Petitioner untimely filed objections requesting that his "late-filed traverse" be considered as objections to the report. (ECF No. 36.) This Court considered Petitioner's late-filed traverse as objections, overruled Petitioner's objections, approved and adopted the report in its entirety, and denied the petition. Petitioner now moves for reconsideration under Federal Rule of Civil Procedure 60(b).

For the following reasons, the Court DENIES Petitioner's motion.


Once judgment has been entered, reconsideration may be sought by filing a motion under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Federal Rule of Civil Procedure 60(b) (motion for relief from judgment). See Hinton v. Pac. Enter., 5 F.3d 391, 395 (9th Cir. 1993).

"Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). "Indeed, 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." Id. (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)) (internal quotation marks omitted). Further, a motion for reconsideration may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation. Id. It does not give parties a "second bite at the apple." See id. Finally, "after thoughts" or "shifting of ground" do not constitute an appropriate basis for reconsideration. Ausmus v. Lexington Ins. Co., No. 08-CV-2342-L, 2009 WL 2058549, at *2 (S.D. Cal. July 15, 2009) (Lorenz, J.).

Similarly, Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 (9th Cir.1994) (citing Ben Sager Chem. Int'l v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). Under Rule 60(b), the court may grant reconsideration based on: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief. Fed.R.Civ.P. 60(b). That last prong is "used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007).


Petitioner requests reconsideration on two grounds: (1) because of Petitioner's counsel's mistake in not informing the Court how serious his illness was; and (2) because of the Court's "misunderstanding of the traverse as not responding to the objections [sic]."[2] (Pet'r's Mot. 2:3-5.)

On October 24, 2013, the magistrate judge issued the report. In the report, he also set a briefing schedule for objections and replies: objections to the report were due by November 5, 2013, and replies were due by November 19, 2013. Though the magistrate judge issued the report without Petitioner's traverse, Petitioner's deadline to file the traverse was extended from September 9, 2013 to October 17, 2013. Despite the extension, Petitioner failed to timely file his traverse. Instead, after the magistrate judge issued the report, Petitioner filed his traverse on November 10, 2013. At that point, clearly Petitioner's counsel was capable of drafting legal briefs, but rather than drafting objections, he chose to draft and file the traverse. The severity of Petitioner's counsel's illness fails to explain how he was capable of drafting and filing a traverse, but not objections to the report. Then on December, 31, 2013-almost two months after the objections were due-Petitioner filed his "objections" by incorporating the late-filed traverse. It also appears at that time Petitioner's counsel was capable of drafting and filing legal documents. Despite these apparent opportunities, objections responding directly to the report were never filed.

This Court discussed in great detail the difficult position Petitioner placed it in by missing every deadline and then incorporating the traverse-which was meant to directly respond to Respondents' answer-for the purpose to objecting to the report. ( See June 26, 2014 Order 3:20-6:3.) Moreover, Petitioner's counsel remains cryptic regarding the dates his illness affected his ability to practice law. Though he provides more information about the severity of his illness, he fails to explain when that illness became a burden on his ability to represent Petitioner for his habeas petition. In other words, there is no explanation before this Court why or how Petitioner's counsel was able to draft and file a traverse, albeit late, but not objections directly responding to the report. Thus, the Court cannot conclude that granting relief under Rule 60(b) is warranted for Petitioner's first ground.

Moving on to Petitioner's second ground, Petitioner argues that the Court "misunderstood the traverse as not responding to the [report]." He explains that "the Traverse responded to the R and R by pointing out that the entire R and R never considered the changes which occurred between first and second trials, making the same mistake as the California Court of Appeal." (Pet'r's Mot. 3:15-4:2.) The inherent fact that follows from Petitioner's position is that the traverse did not directly address a specific issue discussed in the report. This was precisely the problem that this Court emphasized in its June 26, 2014 order. In that order, the Court stated in no uncertain terms that

By not filing objections that specifically address Judge McCurine's findings and recommendations but rather incorporating the traverse as the objections, Petitioner leaves the Court with the difficult task of deciphering and extrapolating how the arguments presented in the traverse correspond to the findings and recommendations in the report in order to produce plausible objections. By transferring that responsibility to the Court, which is what Petitioner ...

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