United States District Court, E.D. California
ANTOINE D. JOHNSON, Petitioner,
J. SALAZAR, Respondent.
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
a federal prisoner proceeding pro se, filed this application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, in which he challenged the validity and
constitutionality of the sentence imposed by the Western
District of Washington. This action was dismissed on March
18, 2018. Despite petitioner's pending appeal, petitioner
filed multiple motions. As discussed below, such motions
should be denied.
December 15, 2017, this court issued findings and
recommendation granting respondent's motion to dismiss
this action for lack of subject matter jurisdiction. (ECF No.
16.) Specifically, the court found that petitioner failed to
demonstrate his factual innocence, and failed to demonstrate
that he did not have a previous unobstructed procedural shot
at presenting his claim, in order to avail himself of the
very narrow “escape hatch” or “savings
clause” that would allow him to challenge his sentence
through a § 2241 in the custodial court. He was advised
that if he wished to file an appeal, he should seek a
certificate of appealability in his objections to the
findings and recommendations. Petitioner filed four timely
sets of objections to the findings and recommendations. (ECF
Nos. 17-20.) On March 19, 2018, the district judge considered
all of petitioner's objections, adopted the findings and
recommendations, declined to issue a certificate of
appealability, granted respondent's motion to dismiss,
and dismissed the action without prejudice.
March 26, 2018, petitioner filed a motion styled,
“Motion Questioning the Evidentiary Support for the
Court's Findings and Request for Amended or Additional
Findings, ” citing Rule 52(a)(5) & (b) of the
Federal Rules of Civil Procedure, and a notice of appeal.
(ECF Nos. 23, 24.)
permits a party to file a motion to amend the findings or
make additional findings, and to amend the judgment
accordingly. It applies in actions tried on the facts without
a jury. Fed.R.Civ.P. 52(a). Motions under Rule 52(b) are
primarily designed to correct findings of fact which are
central to the ultimate decision. Rule 52(b) motions are
appropriately granted in order to correct manifest errors of
law or fact or to address newly discovered evidence or
controlling case law. Fontenot v. Mesa Petroleum
Co., 791 F.2d 1207, 1219-20 (5th Cir. 1986). A motion to
amend a court's factual and legal findings is properly
denied where the proposed additional facts would not affect
the outcome of the case or are immaterial to the court's
conclusions. Weyerhaeuser Co. v. Atropos Island, 777
F.2d 1344, 1352 (9th Cir. 1985).
petitioner contends that the court refused to consider his
argument that language set forth in his exhibit 4 is in
direct conflict with the court's findings, accepting one
part of exhibit 4, and rejecting that part of exhibit 4 that
supports petitioner's claim. (ECF No. 23 at 2-3.) The
language on which petitioner relies is: “[t]he
following definitions were not revised substantively:
“Diagnosis, ” “Informant, ”
“Minor, ” “Third-party payer, ” and
“Undercover agent.” (ECF No. 23 at 5.)
motion is unavailing. First, the court recommended, and the
district court adopted, the findings that petitioner failed
to satisfy both his actual innocence claim, and his lack of
an unobstructed procedural shot at presenting his claims, and
therefore this court lacks subject matter jurisdiction to
hear petitioner's challenge to the validity of his
underlying conviction. Petitioner fails to demonstrate that
he was deprived of an opportunity to challenge his
conviction, and the record reflects he has had multiple
opportunities to do so.
petitioner cannot demonstrate that the additional language he
points to would affect the outcome of this case. As the Ninth
Circuit noted in ruling on petitioner's appeal from the
district court's denial of his pretrial motion to dismiss
the indictment: “A drug abuse treatment program is an
individual or entity that not only provides drug abuse
treatment, but also ‘holds itself out as providing'
treatment.” See 42 C.F.R. § 2.11.
United States v. Johnson, 540 Fed.Appx. 573, 577
(9th Cir. 2013). Petitioner's principal practice was not
to provide substance abuse treatment, and petitioner did not
hold himself out as a substance abuse treatment program. (ECF
No. 16 at 2-3, citing ECF No. 12-1 at 52-53.) Thus,
petitioner's citation to the language at the bottom of
his exhibit 4 would not change the outcome of this case or
impact this court's conclusions. Petitioner's motion
under Rule 52 should be denied.
March 26, 2018, the same day he filed his notice of appeal,
petitioner filed a motion to alter or amend the judgment
under Rule 59(e) of the Federal Rules of Civil Procedure, and
a second request for a certificate of appealability. (ECF No.
26.) As set forth below, the undersigned also recommends
denial of this motion and request.
once an appeal is filed, a district court no longer has
jurisdiction to consider motions affecting the judgment.
Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir.
2007) (citation omitted). However, under Rule 4 of the
Federal Rules of Appellate Procedure, if a party files a
notice of appeal after the entry of judgment but before
disposition of certain motions, including a motion to alter
or amend the judgment under Federal Rule of Civil Procedure
59(e) or a motion for relief from judgment under Rule 60(b),
then the district court retains jurisdiction to consider and
decide that motion and the notice of appeal becomes effective
when that motion is resolved. Because petitioner filed his
motion within 28 days after the entry of judgment, the motion
was timely-filed under Rule 59(e). See Lee-Thomas v.
Prince George's County Public Schools, 666 F.3d 244,
247 n.4 (4th Cir. 2012).
59(e) motion to alter or amend the judgment is an
“extraordinary remedy which should be used
sparingly.” Allstate Ins. Co. v. Herron, 634
F.3d 1101, 1111 (9th Cir. 2011). In general, there ...