Julian v. State of Washington

[1] 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [3] Aug 23, 2019 [4] SEAN F. MCAVOY, CLERK [5] 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON [9] WILLIAM M. JULIAN, 10 2:19-cv-176-SAB Petitioner, [11] v. ORDER DENYING MOTION [12] FOR RECONSIDERATION [13] STATE OF WASHINGTON, [14] Respondent. [16] 17 Before the Court, without oral argument, is Petitioner’s pro se Motion to 18 Reconsider Petitioner’s Habeas Corpus with Memorandum, ECF No. 12. He 19 simultaneously filed a Notice of Appeal, ECF No. 13. Having reviewed the 20 pleadings and the file in this matter, the Court is fully informed and denies the 21 motion. 22 By Order filed July 11, 2019, the Court summarily dismissed Mr. Julian’s pro 23 se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 24 U.S.C. § 2254 . ECF No. 10. Petitioner had not named a proper Respondent. 25 Rumsfeld v. Padilla, 542 U.S. 426 (2004); Stanley v. Cal. Supreme Court, 21 F.3d 26 359, 360 (9th Cir. 1994). He also conceded that he had not fully exhausted his state 27 court remedies before filing his petition. 28 U.S.C. § 2254 (b); Baldwin v. Reese, 541 28 U.S. 27 (2004); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). 1 In the Motion to Reconsider, Petitioner argues that he should have been 2 granted leave to amend the Petition to name the proper Respondent. ECF No. 12 at 3 1. Even with that correction the remaining reasons for dismissal do not warrant 4 reconsideration. 5 Petitioner contends there was no available State corrective process, and he is, 6 therefore, not required to exhaust state remedies. Id. at 3-5. The habeas statute 7 clearly recognizes the jurisdiction of state courts to adjudicate constitutional issues, 8 providing for federal habeas corpus relief when the state court’s adjudication was 9 “contrary to, or an unreasonable application of, clearly established federal law, as 10 determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). 11 Petitioner re-asserts his contention that his conviction and sentence are invalid 12 because he was not charged by an indictment of a grand jury in violation of the Fifth 13 Amendment. ECF No. 12 at 5. This contention is meritless. There is no Federal 14 Constitutional violation when a prosecuting attorney’s criminal information is 15 substituted for the grand jury’s indictment. See Hurtado v. People of State of [16] California, 110 U.S. 516 (1884) (Rejecting claim that grand jury indictment is [17] essential to due process and that it is a violation of the Fourteenth Amendment for a [18] state to prosecute a defendant by criminal information). [19] A motion for reconsideration may be reviewed under either Federal Rule of [20] Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief [21] from judgment). Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255 , 1262 (9th Cir. [22] 1993). “A district court may properly reconsider its decision if it ‘(1) is presented [23] with newly discovered evidence, (2) committed clear error or the initial decision was [24] manifestly unjust, or (3) if there is an intervening change in controlling law.’” Smith [25] v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting School Dist. [26] No. 1J, 5 F.3d at 1263). “There may also be other, highly unusual, circumstances [27] warranting reconsideration.” School Dist. No. 1J, 5 F.3d at 1263. These standards [28] apply in habeas corpus proceedings under 28 U.S.C. § 2254 to the extent they ar not inconsistent with applicable federal statutory provisions and rules. See Gonzale Crosby, 545 U.S. 524, 530 (2005). In this instance, Petitioner has not presented newly discovered evidence. Se School Dist. No. IJ, 5 F.3d at 1263. He has not shown that the Court committe clear error or that the dismissal Order was manifestly unjust. Furthermore, there ha been no intervening change in controlling law and there are no other circumstances warranting reconsideration. Id. 9 Accordingly, IT IS HEREBY ORDERED: Petitioner’s Motion to Reconsider, ECF No. 12, is DENIED. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order an | provide a copy to pro se Petitioner. The file shall remain closed. The Court certifies that pursuant to 28 U.S.C. § 1915 (a)(3), an appeal from this decision could not b 14) taken in good faith, and there is no basis upon which to issue a certificate o appealability. 28 U.S.C. § 2253 (c); Fed. R. App. P. 22(b). | DATED this 23rd day of August 2019. [2] hl Secon 9 Stanley A. Bastian 34 United States District Judge