1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MIGUEL A. CISNEROS, Case No. 18-cv-01877-HSG

8 Petitioner, ORDER DENYING MOTION FOR RECONSIDERATION 9 v. Dkt. No. 59 10 JIM ROBERTSON, 11 Respondent.

12 13 Petitioner, a state prisoner presently incarcerated in Pelican Bay State Prison, filed a pro se 14 petition for a writ of habeas corpus pursuant to

. On September 5, 2019, the 15 Court dismissed the petition for failure to exhaust state court remedies without prejudice to 16 petitioner returning to federal court after exhausting his state court remedies by presenting his 17 claims to the California Supreme Court. Dkt. Nos. 57, 58. The Court denied a certificate of 18 appealability and entered judgment in favor of respondent.

19 Petitioner has filed a pleading titled “Opposition Argument for the Court to re[-]amend 20 petition and not grant the dismissal base on defens[e] evidence presented significant probative 21 value to the ruling of the motion dismissal of petition,” which the Court construes as a motion 22 seeking reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Dkt. No. 23 59. For the following reasons, the Court DENIES the motion for reconsideration. 24 DISCUSSION 25 I. STANDARD 26 Where the court’s ruling has resulted in a final judgment or order, a motion for 27 reconsideration may be based on Rule 59(e) (motion to alter or amend judgment) of the Federal Although Rule 59(e) permits a district court to reconsider and amend a previous order, the 1 rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources. Indeed, a motion for reconsideration should not be 2 granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in 3 the controlling law. 4 Kona Enterprises, Inc. v. Estate of Bishop,

, 890 (9th Cir. 2000) (internal quotation 5 marks and citation omitted). 6 II. ANALYSIS 7 Petitioner argues that the Court committed clear error in dismissing his petition because the 8 Court erroneously denied his request to amend the amended petition and the proposed second 9 amended petition contained evidence that he had exhausted his state court remedies. Dkt. No. 59. 10 The denial for petitioner’s request for leave to file the proposed second amended petition was not 11 clear error because (1) the Court properly denied the request to amend the amended petition on the 12 grounds that no new claims were alleged, and (2) the Court construed the proposed second 13 amended petition as a sur-reply and considered the sur-reply in deciding the motion to dismiss. 14 Dkt. No. 55. In other words, the “evidence” presented in the sur-reply (proposed second amended 15 petition) was considered by the Court. Moreover, the evidence in the sur-reply (proposed second 16 amended petition) was not evidence that petitioner had exhausted his state court remedies. As part 17 of the sur-reply, petitioner submitted the San Mateo County Superior Court’s April 15, 2019, 18 denial of his state habeas petition that raised the claims in the instant action. Dkt. No. 54 at 28-30. 19 This denial does not exhaust the petitioner’s state court remedies. Petitioner continues to 20 misunderstand the exhaustion requirement. As explained in the Court’s September 5, 2019 Order:

21 The exhaustion requirement requires petitioners seeking federal habeas relief to provide the highest state court available an opportunity to rule on the merits of their federal habeas 22 claims. See

(b)–(c); Rose, 455 U.S. at 515–16. Applied to the amended petition, the exhaustion requirement requires Petitioner to have submitted the claims in the 23 amended petition to the California Supreme Court, whether in a petition for review or a state habeas petition, before this Court may consider his claims. 24 Dkt. No. 57 at 5. Because the record shows that petitioner has only presented the claims in the 25 instant action to the San Mateo County Superior Court, and has not presented these claims to the 26 California Supreme Court, the Court did not commit clear error in dismissing this action without 27 prejudice to petitioner returning to federal court after exhausting his state court remedies by 1 presenting his claims to the California Supreme Court. Nor does the dismissal constitute manifest 2 || injustice. Petitioner may refile this action after he has exhausted his state court remedies by 3 presenting his claims to the California Supreme Court. 4 CONCLUSION 5 For the foregoing reasons, petitioner’s request for reconsideration pursuant to Rule 59(e) of 6 || the dismissal without prejudice for failure to exhaust state remedies is DENIED. 7 This order terminates Dkt. No. 59. This case remains closed. 8 IT IS SO ORDERED. 9 || Dated: 9/23/2019 10 7 Hatpurred Z Ld, I HAYWOOD S. GILLIAM, JR. United States District Judge 12

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