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Johnson v. Salazar

United States District Court, E.D. California

May 4, 2018

J. SALAZAR, Respondent.



         Petitioner, 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.


         On 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.

         Rule 52 Motion

         On 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.)

         Rule 52 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).

         Here, 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.)

         Petitioner's 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.

         Second, 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.

         Rule 59(e) Motion

         On 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.

         Generally, 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).

         A Rule 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 ...

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