(HC) Baker v. Muniz

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 DAVID L. BAKER, No. 2: 18-cv-1154-KJM-DB 12 Plaintiff, 13 v. ORDER 14 MUNIZ, prison warden, 15 Defendant. — 16 — 17 Plaintiff’s filing styled “Objection to Order,” ECF No. 14, is before the court. The 18 court construes this filing as a motion to reconsider the court’s order adopting the findings and 19 recommendations of the magistrate judge and dismissing the petition as untimely (ECF No. 12). 20 A motion for reconsideration or relief from a judgment is appropriately brought under 21 either Federal Rule of Civil Procedure 59(e) or Rule 60(b). Fuller v. M.G. Jewelry, 950 F.2d 22 1437, 1442 (9th Cir. 1991) (citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). Plaintiff’s 23 motion was brought within 28 days of final judgment and is thus timely as a Rule 59(e) motion. 24 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with 25 newly discovered evidence, (2) the district court committed clear error or made an initial decision 26 that was manifestly unjust, or (3) there is an intervening change in controlling law.’” Ybarra v. 27 McDaniel, 656 F. 3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of Oakland, 255 F. 3d 28 734, 737 (9th Cir. 2001)) (emphasis added). Similarly, Local Rule 230(j)(3)-(4) requires that a 1 movant seeking reconsideration identify “what new or different facts or circumstances” exist, or 2 any other grounds, to justify reconsideration of a court’s prior order. E.D. Cal. L.R. 230(j)(3)-(4). 3 Here, the plaintiff cites to Senate Bill 1437, now codified as California Penal Code 4 section 1170.95, as grounds to reconsider the court’s order. Obj. to Order at 1, ECF No. 14. 5 However, changes in state law are not cognizable on federal habeas review unless they implicate 6 a violation of a provision of the United States Constitution. See Smith v. Phillips, 455 U.S. 209 , 7 221 (1982). The court dismissed plaintiff’s claim as untimely under the limitations period of 8 AEDPA in 28 U.S.C. § 2244 (d)(1). Plaintiff cannot show that an intervening change in a different 9 law warrants reconsideration. The court notes that California Penal Code § 1170.95 expressly 10 provides a state court procedure to vacate felony murder convictions. 11 Plaintiff alleges no other grounds for reconsideration: he does not allege newly 12 discovered evidence, nor does he claim clear error or manifest injustice. 13 Plaintiff also cites a need for “a continuance that will allow him to exhaust his 14 remedies with the lower courts as the change to the felony murder rule happened after he filed in 15 this court.” Obj. to Order at 2. Given that no further proceedings are pending in this matter and 16 final judgment is entered, no continuance is warranted. 17 For the foregoing reasons, plaintiff’s Objection to Order, here construed as a 18 motion to amend or alter the judgment under Rule 59(e), is DENIED. 19 DATED: October 21, 2019. — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —