Opinion
2:19-CR-87-RMP-1
07-20-2022
UNITED STATES OF AMERICA, Plaintiff, v. JUAN RIVERA, aka Juan Rivera Cruz, Juan Cruz Rivera, Manuel Rivera, and Camaron, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION
ROSANNA MALOUF PETERSON SENIOR UNITED STATES DISTRICT JUDGE
BEFORE THE COURT, without oral argument, is Defendant Juan Rivera's Motion for Reconsideration, ECF No. 92. Defendant, who is proceeding pro se, asks this Court to reconsider its prior Order dismissing his motion to vacate brought under 28 U.S.C. § 2255. See ECF No. 91. Having reviewed the motion, the record, and relevant law, the Court is fully informed.
Pursuant to the Local Criminal Rules, “[n]o response to a motion for reconsideration shall be filed unless requested by the court.” LCrR 12(c)(5). The Court did not request that the Government file a response in this matter. ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION ~
BACKGROUND
On May 5, 2022, the Court denied Defendant's § 2255 motion, denied as moot all remaining motions, declined to issue a certificate of appealability, and ordered that the file be closed in the instant matter. ECF No. 91. Defendant placed his motion for reconsideration into the prison mail system somewhere between June 2 and June 10, 2022. Compare ECF No. 92 at 8 (Defendant signs the motion on June 2, 2022) with ECF No. 92-1 (envelope file-stamped on June 10, 2022). Defendant argues that this Court erred by failing to construe his motion for extension of time as a timely habeas petition. ECF No. 92 at 2. In the alternative, Defendant argues that he is entitled to equitable tolling of his untimely filed § 2255 motion. Id. at 4.
LEGAL STANDARD
The Federal Rules of Criminal Procedure do not expressly authorize motions for reconsideration. United States v. Krug, No. CR 09-01148-MMM, 2012 WL 12973474, at *1 (C.D. Cal. Oct. 24, 2012). However, Rule 59(e) of the Federal Rules of Civil Procedure authorizes motions to alter or amend judgment in certain circumstances. Alternatively, Rule 60(b) provides relief from final judgment based on a mistake, newly discovered evidence, fraud, a void judgment, a discharged judgment, or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1)-(6).
Reconsideration is “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) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)). A motion for reconsideration should not be granted “unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); see also LCrR 12(c)(5) (“Motions for reconsideration are disfavored” and a court “will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts . . . which could not have been brought to its attention earlier with reasonable diligence.”).
ANALYSIS
Preliminarily, the Court addresses whether the instant motion for reconsideration is timely. A motion for reconsideration under Rule 59(e) must be filed “no later than 28 days after the entry of judgment.” Fed.R.Civ.P. 59(e). The Court's order dismissing the § 2255 motion was filed on May 5, 2022, and the Clerk's Office filed Mr. Rivera's motion for reconsideration on June 16, 2022, forty-three days later. ECF No. 91.
However, Defendant's motion may be timely under the prison mailbox rule, which provides that a motion by a pro se litigant is deemed “filed” at the moment it is delivered to “prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001). The rules governing § 2255 motions provide that “[t]imely filing may be shown by a declaration in compliance with 28 U.S.C. §1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.” Rules Governing § 2255 Proceedings, R. 3, 28 U.S.C. foll. § 2255.
In this case, the earliest date file-stamped on the envelope for the instant motion is June 10, 2022. ECF No. 92-1. Defendant did not separately file a declaration or notarized statement setting forth when he delivered the motion to prison authorities nor does Defendant submit evidence of the prison log to demonstrate when the motion was delivered. See, e.g., Douglas v. Noelle, 567 F.3d 1103 (9th Cir. 2009) (holding that a declaration or statement was unnecessary where the prison's own records showed that the complaint was sent to the district court by registered mail prior to the filing deadline). Nevertheless, Defendant's motion provides that it was “submitted under penalty of perjury” on June 2, 2022, exactly twenty-eight days after the Court issued its Order. ECF No. 92 at 8. Accordingly, the Court will consider the motion for consideration under Rule 59(e). For sake of judicial efficiency, the Court separately considers the motion under Rule 60(b), which requires that motions for relief from judgment be filed “no more than a year after the entry of the judgment or order.” Fed.R.Civ.P. 60(b).
Reconsideration Under Rule 59(e)
Defendant raises several arguments in his motion for reconsideration. First, he notes that he mislabeled the motion filed on February 18, 2022, as a motion for extension of time to file rather than a § 2255 motion. ECF No. 92 at 1. This argument is inconsistent with Defendant's filing of a separate § 2255 motion approximately one month later, suggesting that he knew that his first motion was not a § 2255 motion. Compare ECF No. 85 (Motion for Extension of Time to File § 2255 Motion and Request to Appoint Counsel) with ECF No. 87 (Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, filed March 15, 2022).
Nevertheless, Defendant maintains that a liberal construction of his initial motion for extension of time shows that it contains the necessary elements of a § 2255 motion. ECF No. 92 at 1. At least one district court in this circuit has rejected a similar argument where recharacterization of a motion for extension of time as a § 2255 petition would be both inconsistent with “the limits and specific nature” of the movant's initial request and disadvantageous to the movant, given the restrictive nature of successive § 2255 petitions. See United States v. Latin, Cr. No. 17-00515 JMS (03), 2022 WL 676670, at *1 n.4 (D. Haw. Mar. 7, 2022) (citing Castro v. United States, 540 U.S. 375, 381-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)); see also United States v. Seesing, 234 F.3d 456, 463 (9th Cir. 2000)). In Seesing, the Ninth Circuit adopted the procedures used in the Second and Third Circuits to extend certain protections to pro se litigants for habeas cases. 234 F.3d at 464. One procedural protection provides that district courts should not recharacterize motions as a § 2255 motion unless the court (a) obtains advanced informed consent of the pro se prisoner for such a recharacterization and (b) finds that the relief sought in the motion is consistent with such recharacterization and that the pro se prisoner has had a chance to first withdraw the motion. Id.
In reviewing Defendant's motion for extension of time, the only relief requested is for (1) a forty-five-day extension of time, (2) an order compelling Defendant's former defense counsel to provide discovery, and (3) appointment of counsel. ECF No. 85 at 1-2. Accordingly, the motion for extension of time and various other relief, filed on February 18, 2022, should not be recharacterized as a § 2255 motion.
In declining to recharacterize Defendant's motion for extension of time as a § 2255 motion, the Court need not consider whether the motion for extension of time was timely filed pursuant to the prison mailbox rule within the one-year deadline for § 2255 motions. Even so, the Court reiterates the analysis in its prior Order that the motion did not “indicate in a sworn declaration or notarized statement when [Defendant] submitted his motion for extension of time for purposes of the prison mailbox rule.” ECF No. 91 at 6. Moreover, Defendant's request for a forty-five-day extension to March 15, 2022, provides no support for when he delivered the motion for extension of time to prison authorities. Contrast with ECF No. 92 at 8 (Defendant states under penalty of perjury that he submitted the motion for reconsideration on June 2, 2022). ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION ~
Defendant did file a § 2255 motion on March 15, 2022, which the Court already determined to be untimely. ECF Nos. 87, 91. In so ruling, the Court declined to apply equitable tolling. In the instant motion, Defendant argues that “equitable tolling is appropriate in the instant case” for the same reason advanced in his motion for extension of time: the COVID-19 pandemic. ECF No. 92 at 4; see also ECF No. 85 at 1-2.
A motion for reconsideration under Rule 59(e) “is not a vehicle permitting the unsuccessful party to ‘rehash' arguments previously presented.” United States v. Davis, No. 2:08-cr-0474 WBS KJN P, 2019 WL 1428112, at *1 (E.D. Cal. Mar. 29, 2019) (quoting Costello v. United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991)). Defendant does not present newly discovered evidence, clear error, or a controlling change in the law. See 389 Orange St. Partners, 179 F.3d at 665. Instead, Defendant reiterates the arguments advanced in his motion for extension of time regarding the COVID-19 pandemic and cites to Brown v. Davis , a district court case that he mistakenly characterizes as Ninth Circuit precedent. ECF No. 92 at 4.
See Brown v. Davis, No. 1-19-cv-01796-DAD, 2021 WL 1839411 (E.D. Cal. May 7, 2021). Defendant specifically cites to an order from Brown filed on January 28, 2022. ECF No. 92 at 4. That order is filed at ECF No. 37 in Case No. 1-19-cv-01796-DAD, but it is not available on Westlaw. ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION ~
In Brown, the district court granted equitable tolling of the limitations deadline under 28 U.S.C. § 2244, citing the “exceptional and extraordinary circumstances of the COVID-19 pandemic” and the impact that the pandemic had on the “petitioner's right to the assistance of appointed habeas counsel in preparing his federal habeas petition.” 2021 WL 1839411, at *4. The district court's reasoning in Brown is not binding on this Court. Nor does Brown create a change in controlling law that undermines this Court's prior reasoning that Defendant failed to diligently pursue his rights before the statute of limitations expired in the instant matter. See
ECF No. 91 at 9. Therefore, the Court denies Defendant's motion for reconsideration under Rule 59(e).
Reconsideration Under Rule 60(b)
The Court alternatively examines Defendant's arguments for reconsideration under Rule 60(b), which provides relief from judgment in several narrow circumstances, including “mistake[,]” “newly discovered evidence[,]” or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (2), (6). Defendant presents no evidence of mistake or newly discovered evidence to support reconsideration of the Court's prior Order. Instead, he argues that his motion for extension of time should have been recharacterized as a § 2255 motion that was timely under the prison mailbox rule or, alternatively, that he is entitled to equitable tolling. ECF No. 92 at 1-7. The Court liberally construes these arguments as a request for relief pursuant to the “catchall” provision in Rule 60(b)(6).
Ninth Circuit precedent demonstrates that relief under Rule 60(b)(6) requires a showing of “extraordinary circumstances.” Wood v. Ryan, 759 F.3d 1117, 1120 (9th Cir. 2014) (internal quotation marks omitted). Here, Defendant simply disagrees with the Court's previous ruling that his § 2255 motion was untimely and “[m]ere disagreement with a previous order is an insufficient basis for reconsideration.” Barnes v. Sea Hawaii Rafting, LLC, 16 F.Supp.3d 1171, 1183 (D. Haw. 2014); see also Mothershed v. Elwell, 235 Fed.Appx. 638 (9th Cir. 2007) (affirming the district court's denial of motion for reconsideration where the pro se movant showed only that he disagreed with the district court's interpretation of the law but failed to show an intervening change in the law or newly discovered evidence).
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for
Reconsideration, ECF No. 92, is DENIED.
IT IS SO ORDERED
Order and provide copies to counsel and to Defendant.