United States District Court, C.D. California
Denying Petitioner's Third Fed. R.Civ.P. 60(b) Motion for Relief from the March 27, 2012 Judgment as Untimely and Meritless; Denying a Certificate of Appealability
OPINION AND ORDER
VALERIE BAKER FAIRBANK, Senior District Judge.
This was California state prisoner Kenjuan De Adams ("petitioner")'s action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court will deny petitioner's motion for relief from judgment as untimely and meritless.
Magistrate Judge Mumm issued a well-reasoned Report and Recommendation ("R&R") recommending that the habeas petition be dismissed with prejudice as untimely. On March 27, 2012, this Court issued an Order (Document ("Doc") 32) adopting the R&R and dismissing the action with prejudice as untimely and an Order denying petitioner a certificate of appealability ("COA") (Doc 34), and entered final judgment in favor of the respondent warden (Doc 33). Petitioner attempted to appeal to the United States Court of Appeals for the Ninth Circuit ("the Circuit") (Docs 35-37), but the Circuit denied petitioner's request for a COA by order issued on March 15, 2013 (Doc 8).
Petitioner's First Motion for Relief from Judgment. On February 24, 2014, petitioner filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) (Doc 40). On April 9, 2014, this Court issued an Opinion and Order (Doc 41) denying the first reconsideration motion and denying a COA. See Adams v. Hedgpeth, 2014 WL 1795167 (C.D. Cal. Apr. 9, 2014) (Fairbank, J.). Petitioner attempted to appeal (Docs 42-43), but the Circuit issued an Order on May 29, 2014 (Doc 46) likewise denying a COA.
Petitioner's Second Motion for Relief from Judgment. On May 9, 2014, petitioner filed a second motion for reconsideration (Doc 44). By Opinion and Order issued May 30, 2014 (Doc 45), this Court denied the second reconsideration motion and denied a COA. Petitioner attempted to appeal (Docs 47-48), but the Circuit issued an Order on August 13, 2014 (Doc 49) likewise declining to issue a COA.
Petitioner's Third Motion for Relief from Judgment. Most recently, on December 9, 2014, petitioner filed a document entitled "Motion for Leave to File Petition for Writ of Habeas Corpus after the Expiration of Time as a Result of Erroneous Application of Tolling Time by the Court, this Motion Is Brought Pursuant to Federal Rules of Civil Procedure, Rule 6." The document argues that the Court incorrectly dismissed the habeas petition as untimely back in March 2012, particularly by erroneously denying equitable tolling of the AEDPA limitations period. Accordingly, the Court will construe the filing as a third motion for reconsideration or relief from judgment and analyze the request first pursuant to Rule 59(e) and then Rule 60(b). The Court has not ordered respondent to respond to petitioner's motion, and respondent has not filed any response, or request for an extension of time, in the four weeks since petitioner filed the motion.
A. Rule 59(e)
Rule 59(e) provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of judgment." Judgment was entered on March 27, 2012, so the motion is untimely (absent an extension of time nunc pro tunc ) if construed as a Rule 59 motion. Moreover, Federal Rule of Civil Procedure 6(b)(2) provides that "a court must not extend the time to act under Rules... 59(b), (d), and (e) and 60(b)." Therefore, the Court lacks discretion or authority to consider petitioner's motion under Rule 59(e). See Azam v. City of Pleasanton, 356 F.Appx. 6, 7 (9th Cir. 2009) (B. Fletcher, Leavy, Rymer) ("The district court did not abuse its discretion when it denied Azam's post-judgment motions seeking enlargement of time to file a motion for reconsideration or relief from judgment. The district court had no power to extend the time to file a Rule 59(e) motion.") (citing, inter alia, Fed.R.Civ.P. 6(b)(2) and Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1993)); accord Annobil v. Worcester Skilled Care Ctr., Inc., 2014 WL 7384758, *1 (D. Mass. Dec. 29, 2014) ("Because Plaintiff's Rule 59(e) motion was filed on the 29th day following the entry of judgment, the motion is untimely. The Court is without power to extend the deadline beyond the time provided in the Rule.") (district-court citation omitted).
In any event, petitioner would not be entitled to relief under Rule 59. Reconsideration is appropriate under Rule 59(e) if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law. See School Dist. No. 1J Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). Similarly, our District's Local Civil Rule 7-18 provides in pertinent part that
[a] motion for reconsideration of any decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision.
Here, petitioner has not presented any "newly discovered evidence." See C.D. Cal. LCivR 59-1.3, Specification of Ground - Newly Discovered Evidence (describing required contents of affidavit which a Rule 59(e) movant must submit if the ground for reconsideration is newly discovered evidence). Nor has petitioner shown any error in the initial decision, or demonstrated that there has been "an intervening change in controlling law", School Dist. No. 1J, 5 F.3d at 1263, a/k/a "a change of law occurring after the time of such decision", C.D. Cal. LCivR 59-1.3.
Rather, petitioner merely disagrees with the Court's decision that he did not carry his burden of showing that he was entitled to sufficient statutory and/or equitable tolling to render his petition timely under AEDPA. He essentially reiterates the arguments which he made in his brief opposing respondent's motion to dismiss the habeas petition as untimely (Doc 28), his objections to the R&R (Doc 31), or his first two motions for reconsideration or relief from judgment herein. See C.D. Cal. LCivR 7-18 (stating, in pertinent part, "No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion."); see, e.g., Doc 50 at 3-5 (arguing that petitioner was entitled to "gap tolling" for the periods between the state courts' denial of one habeas petition and his filing in state court of the next habeas petition); id. at 6 (arguing that relation-back doctrine applies); id. at 6-10 (arguing that Magistrate Judge abused discretion in denying petitioner's Rhines v. Weber motion to stay the case and hold it in abeyance so that he could return to state court to exhaust unexhausted claims).
Thus, construed as a Rule 59(e) motion, the motion is both untimely and meritless.
B. Federal Rule of Civil Procedure 60(b), Relief from Judgment Rule 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or ...