United States District Court, N.D. California
ORDER DENYING MOTION TO ALTER OR AMEND THE JUDGMENT Dkt. No. 28
WILLIAM H. ORRICK, District Judge.
Petitioner Joseluis Morales's motion to alter or amend the judgment is denied because Ninth Circuit precedent forecloses his habeas claims.
This is a closed federal habeas corpus action. Morales challenged the constitutionality of California Penal Code section 2933.6 because it rendered him, as a validated associate of a prison gang, ineligible for various time credits. His equal protection claim was foreclosed by Nevarez v. Barnes, 749 F.3d 1124 (9th Cir. 2014), where the Ninth Circuit, sitting in federal habeas review, explicitly rejected an ex post facto challenge to section 2933.6. Id. at 1128. I denied his habeas petition, which asserted ex post facto, equal protection, and double jeopardy claims, declined to issue a certificate of appealability, and entered judgment in favor of respondent on September 2, 2014. Morales then timely filed his motion under Federal Rule of Civil Procedure 59(e). (Docket No. 28.)
STANDARD OF REVIEW
Where, as here, the Court's ruling has resulted in a final judgment or order, a motion for reconsideration may be based on Rule 59(e) of the Federal Rules of Civil Procedure. "Under Rule 59(e), it is appropriate to alter or amend a judgment 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.'" United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001)).
Morales asserts that the judgment should be altered or amended, and a certificate of appealability issued, because my decision conflicts with Ninth Circuit precedent, I erroneously rejected his equal protection claim, and the state supreme court's denial of my petition was "not on the merits." (Pet.'s Mot. to Alter or Amend ("MAA") at 2-5.) None of these contentions shows that there is newly discovered evidence, or that I committed clear error or made an unjust decision, or that there was an intervening change in controlling law.
I. Ninth Circuit Precedent
I rejected Morales's claims because they were foreclosed by Nevarez. Morales claims that Nevarez is in conflict with an older Ninth Circuit decision, Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003). He contends that the " Nevarez court did not analyze the claim in the same manner [as]... the Himes court, causing here a disagreement that requires [a certificate of appealability] for the Ninth Circuit to clarify both of these cases." (MAA at 2.) He alleges that neither the Ninth Circuit nor this Court considered that the statute applied retroactively. (Id. )
Morales's contentions lack merit. First, Himes is not on point. It addressed an Oregon statute relating to parole. Nevarez addresses the same California statute relating to the acquisition of time credits that Morales challenges. I must follow Nevarez because it is squarely on point.
Second, I previously considered the issue of retroactivity when I addressed Morales's ex post facto claim. By their very nature, ex post facto claims ...