Blanco v. Diaz

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 NORMAN BLANCO, Case No.: 18-CV-2005 JLS (KSC) 12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION FOR RECONSIDERATION 14 RALPH DIAZ, Secretary, 15 Respondent. (ECF No. 15) [16] 17 Presently before the Court is Petitioner Norman Blanco’s Application for Certificate 18 of Appealability from the District Court (“Mot.,” ECF No. 15), which the Court has 19 construed as a motion for reconsideration of the Court’s August 6, 2019 Order denying 20 Petitioner a certificate of appealability (“COA”) (the “Order,” ECF No. 12), see ECF No. 21 16, as well as an Opposition (“Opp’n,” ECF No. 18) filed by Respondent Ralph Diaz, 22 Secretary of the California Department of Corrections and Rehabilitation (“CDCR”). 23 Having carefully considered the underlying Order, the Parties’ arguments, and the relevant 24 law, the Court DENIES Petitioner’s Motion. 25 BACKGROUND 26 The Court incorporates by reference the factual background as detailed in Magistrate 27 Judge Karen S. Crawford’s May 16, 2019 Report and Recommendation re Petition for Writ 28 / / / 1 of Habeas Corpus, see ECF No. 9 (“R&R”) at 1–2, and the Court’s August 6, 2019 Order, 2 see ECF No. 12 at 2. 3 Procedurally, Petitioner filed the underlying Petition on August 24, 2018, see 4 generally ECF No. 1 (“Pet.”), contending that his Federal Constitutional rights were 5 violated because he was denied “entitlement to parole considerations” under Proposition 6 57, see id. at 6, and that his right to earn good conduct credits under Proposition 57 was 7 being withheld from him in violation of his Due Process rights. See id. at 8. Respondent 8 moved to dismiss the Petition on November 19, 2018, see generally ECF No. 6, arguing 9 that Petitioner’s claims (1) did not lie at the core of federal habeas corpus and therefore 10 had to be asserted, if at all, under 42 U.S.C. § 1983 , see id. at 2–4; and (2) were nothing 11 more than a challenge to state law and therefore failed to rise to the level of a cognizable 12 federal question meriting federal habeas review. See id. at 4–5. 13 On May 16, 2019, Magistrate Judge Crawford issued an R&R recommending that 14 the Court grant Respondent’s motion to dismiss, see generally ECF No. 9, to which 15 Petitioner did not object. After reviewing the R&R, the Court concluded that it was well16 reasoned and contained no clear error, see Order at 3; accordingly, the Court adopted 17 Magistrate Judge Crawford’s R&R in its entirety and dismissed the Petition. See id. The 18 Court also denied a COA on the grounds that “no reasonable jurist would find it debatable 19 whether the Court was correct in its determination that Petitioner is not entitled to habeas 20 corpus relief.” See id. at 4 . Petitioner filed the instant Motion on August 21, 2019. See 21 generally ECF No. 15. 22 LEGAL STANDARDS 23 I. Reconsideration 24 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 25 amend its judgment. In the Southern District of California, a party may apply for 26 reconsideration “[w]henever any motion or any application or petition for any order or 27 other relief has been made to any judge and has been refused in whole or in part.” Civ. 28 / / / 1 L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, new or 2 different facts and circumstances which previously did not exist. Id. 3 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 4 discovered evidence, committed clear error, or if there is an intervening change in the 5 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 6 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 7 banc)) (emphasis in original). Reconsideration is an “extraordinary remedy, to be used 8 sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., 9 Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000). Ultimately, whether to grant 10 or deny a motion for reconsideration is in the “sound discretion” of the district court. 11 Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 12 F.3d at 883). A party may not raise new arguments or present new evidence if it could 13 have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. 14 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 15 II. Certificate of Appealability 16 A COA is authorized “if the applicant has made a substantial showing of the denial 17 of a constitutional right.” 28 U.S.C. § 2253 (c)(2). “Where a district court has rejected the 18 constitutional claims on the merits, . . . [t]he petitioner must demonstrate that reasonable 19 jurists would find the district court’s assessment of the constitutional claims debatable or 20 wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When “the district court denies a 21 habeas petition on procedural grounds without reaching the prisoner’s underlying 22 constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of 23 reason would find it debatable whether the petition states a valid claim of the denial of a 24 constitutional right and that jurists of reason would find it debatable whether the district 25 court was correct in its procedural ruling.” Id. “Where a plain procedural bar is present 26 and the district court is correct to invoke it to dispose of the case, a reasonable jurist could 27 not conclude either that the district court erred in dismissing the petition or that the 28 / / / 1 petitioner should be allowed to proceed further. In such a circumstance, no appeal would 2 be warranted.” Id. 3 ANALYSIS 4 Petitioner “requests that the district court issue a certificate of appealability . . . 5 permitting petitioner to appeal from [the] judgment entered by the court on August 6th, 6 2019 dismissing petitioner’s petition for writ of habeas corpus and granting respondent[’]s 7 motion and denying certificate of appealability.” Mot. at 1. He contends that his Petition 8 “demonstrate[s] a substantial showing of the denial of a constitutional right.” See id. at 2. 9 Respondent contends that Petitioner “has not and cannot make a substantial showing 10 of the denial of a constitutional right,” Opp’n at 6, because his “parole review claim does 11 not lie at the core of federal habeas corpus because success on this claim would not 12 necessarily spell speedier release” given that “the parole board would still have to 13 determine if, after considering ‘all relevant reliable information,’ [Petitioner] poses a 14 ‘current, unreasonable risk of violence of a current, unreasonable risk of significant 15 criminal activity’ if he were to be released.” Id. at 4 (citing Sandin v. Conner, 515 U.S. 16 472, 487 (1995); Nettles v. Grounds, 830 F.3d 922 , 934–35 (9th Cir. 2016) (en banc); Neal 17 v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); 15 C.C.R. §§ 2249.4(b)–(c), 2249.5). 18 “Further, federal habeas corpus relief is not available to correct alleged errors in the state 19 court’s application of interpretation of state law,” id. at 5 (citing Swarthout v. Cooke, 562 20 U.S. 216, 219 (2011)), and Petitioner’s “parole review and credit claims fail to allege 21 claims that rise to the level of a cognizable federal question.” Id. at 6 (citing Burkey v. 22 Deeds, 824 F. Supp. 190, 192 (D. Nev. 1993)). 23 Because the Court determined that Petitioner was not entitled to habeas relief,1 the 24 denial of the Petition was on procedural grounds rather than on the merits. Accordingly, [25] 26 1 As intimated in Magistrate Judge Crawford’s R&R, see id. at 3, and the Court’s Order, see id. at 2, although the Court lacks habeas jurisdiction, Petitioner may nonetheless be able to pursue a civil rights [27] action under 42 U.S.C. § 1983 . See, e.g., Smith v. Pearman, No. 19-CV-03683-SI, 2019 WL 4918259 , at 28 *4 (N.D. Cal. Oct. 4, 2019) (dismissing habeas petition “without prejudice to petitioner filing a new civil 1 || Petitioner is entitled to a COA only if he can show “that jurists of reason would find it 2 || debatable whether the petition states a valid claim of the denial of a constitutional right and 3 || that jurists of reason would find it debatable whether the district court was correct in its 4 || procedural ruling.” See Slack, 529 U.S. at 484 (emphasis added). 5 Having again reviewed the filings and relevant law, the Court concludes that it did 6 || not err in concluding that no jurist of reason would find it debatable whether the Court was 7 correct in its procedural ruling. See, e.g., Espinoza v. Sherman, No. 16-16382, 2017 WL 8 3526619, at *1 (9th Cir. Apr. 24, 2017) (denying COA in habeas action dismissed on the 9 || grounds that habeas jurisdiction was not invoked by mere possibility that petitioner’s 10 ||sentence would be shortened by the reversal of a disciplinary conviction); Mustafaa v. 11 Davis, No. 19-CV-04105-EMC, 2019 WL 6771794 , at *4 (N.D. Cal. Dec. 12, 2019) 12 ||(denying COA when dismissing habeas petition concerning denial of good conduct time 13 ||/credits under Prop 57); Smith, 2019 WL 4918259 , at *4 (denying COA after dismissing 14 ||/habeas petition to enforce rights under Prop 57); Olivier v. Cal. Dep’t of Rehab., No. 15 119CV00131SKOHC, 2019 WL 462771 , at *3 (E.D. Cal. Feb. 6, 2019) (recommending 16 || dismissal of habeas petition challenging sentence under Prop 57 and denial of COA where 17 || “[rJeasonable jurists would not find the Court’s determination that Petitioner is not entitled 18 ||to pursue federal habeas corpus relief to be debatable or wrong’). The Court therefore 19 || DENIES Petitioner’s Motion that the Court reconsider its prior denial of a COA. 20 CONCLUSION 21 In light of the foregoing, the Court DENIES Petitioner’s Motion (ECF No. 15). 22 IT IS SO ORDERED. [23] 24 Dated: February 10, 2020 peach Jt, oe waited 5 on. Janis L. Sammartino United States District Judge