1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MUECK, No. 2:18-cv-02619-TLN-EFB 12 Petitioner, 13 v. ORDER 14 HUNTER ANGLEA 15 Respondent. 16 17 Petitioner Steven Mueck (“Petitioner”), a state prisoner proceeding pro se, has filed a 18 Motion for Reconsideration, titled “Petitioner’s Declaration in Support of Request for 19 Reconsideration Rule 59.” (ECF No. 28.) For the reasons set forth below, Petitioner’s Motion is 20 DENIED. 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 On September 24, 2018, Petitioner filed a Petition for Writ of Habeas Corpus. (ECF No. 23 1.) Petitioner argues that the state trial court violated his Fourteenth Amendment right to due 24 process when it refused to apply a narrower definition of “unreasonable risk of danger to public 25 safety” to his Petition for resentencing under Proposition 36. (ECF No. 1 at 5–9.) 26 On November 29, 2018, Respondent Hunter Angela (“Respondent”) filed a Motion to 27 Dismiss. (ECF No. 14.) Respondent argues the Petition should be dismissed because it fails to 28 raise a cognizable federal claim and is untimely. (ECF No. 14 at 1.) Petitioner opposed the 1 motion and Respondent replied. (ECF Nos. 20, 22.) On August 6, 2019, the Findings and 2 Recommendations recommended dismissal of the Petition on the basis that Petitioner failed to 3 raise a cognizable federal claim. (ECF No. 23.) Petitioner requested and was granted a thirty-day 4 extension of time to file objections to the Findings and Recommendations. (ECF Nos. 24–25.) 5 On December 18, 2019, the Court adopted the Findings and Recommendations, granting 6 Respondent’s Motion to Dismiss, and dismissing Petitioner’s Petition for failure to state a 7 cognizable federal question. (ECF No. 26.) The Court entered Judgment on December 20, 2019. 8 (ECF No. 27.) On January 21, 2020, Petitioner filed both a Notice of Appeal (ECF No. 29), and a 9 post-judgment motion styled “Declaration in Support of Request for Reconsideration Rule 59,” 10 which this Court construes as a Motion for Reconsideration. (ECF No. 28.) In his Motion for 11 Reconsideration, Petitioner requests “an extension and one final attempt to file objections” to the 12 August 6, 2019 Findings and Recommendations. (Id.) 13 On February 28, 2020, the Court of Appeals construed Petitioner’s motion as one of those 14 enumerated in Rule 4(a)(4) of the Federal Rules of Appellate Procedure and directed this Court to 15 issue a decision on the motion. (ECF No. 34.) 16 II. STANDARD OF LAW 17 The Court may grant reconsideration under Federal Rules of Civil Procedure 59(e) or 60. 18 See Schroeder v. McDonald,

, 458–59 (9th Cir. 1995). “[A] motion for 19 reconsideration should not be granted, absent highly unusual circumstances, unless the district 20 court is presented with newly discovered evidence, committed clear error, or if there is an 21 intervening change in the controlling law.” 389 Orange St. Partners v. Arnold,

, 665 22 (9th Cir. 1999) (analyzing Federal Rule 59(e) of Civil Procedure, providing for the alteration or 23 amendment of a judgment). 24 A motion to alter or amend a judgment under Rule 59(e) must be filed no later than 25 twenty-eight days after the entry of judgment. Fed. R. Civ. P. 59(e). Therefore, a “motion for 26 reconsideration” is treated as a motion to alter or amend judgment under Rule 59(e) if it is filed 27 within twenty-eight days of entry of judgment; otherwise, it is treated as a Rule 60(b) motion for 28 relief from judgment or order. Rishor v. Ferguson,

(9th Cir. 2016); see Am. 1 Ironworks & Erectors, Inc. v. N. Am. Const. Corp.,

, 898–99 (9th Cir. 2001). 2 Petitioner filed his Motion for Reconsideration on January 21, 2020, thirty-two days after entry of 3 judgement, thus this action will be analyzed under Rule 60. 4 Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration of a final 5 judgment where one of more of the following is shown: (1) mistake, inadvertence, surprise, or 6 excusable neglect; (2) newly discovered evidence which, with reasonable diligence, could not 7 have been discovered within twenty-eight days of entry of judgment; (3) fraud, misrepresentation, 8 or misconduct of an opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; 9 and (6) any other reason justifying relief. Fed. R. Civ. P. 60(b). 10 A motion based on Rule 60(b) must be made “within a reasonable time.” Fed. R. Civ. P. 11 60(c)(1). With respect to subsections (1), (2), and (3), the motion must be filed “no more than a 12 year after the entry of judgment or order or the date of the proceeding.” Id. Rule 60(b)(6) goes 13 further, empowering the court to reopen a judgment even after one year has passed. Pioneer Inv. 14 Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

(1993). However, subsections (1) 15 through (3) are mutually exclusive of subsection (6), and thus a party who failed to take timely 16 action due to “excusable neglect” may not seek relief more than a year after the judgment by 17 resorting to subsection (6).

(citing Liljeberg v. Health Services Acquisition Corp.,

847, 863, and n.11 (1988)). 19 Furthermore, where the motion for reconsideration pertains to an order granting or 20 denying a prior motion, Local Rule 230(j) requires the moving party to “[identify] what new or 21 different facts or circumstances are claimed to exist which did not exist or were not shown upon 22 such prior motion, or what other grounds exist for the motion; and [explain] why the facts or 23 circumstances were not shown at the time of the prior motion.” E.D. Cal. L.R. 230(j)(3)–(4). 24 III. ANALYSIS 25 As noted, the August 6, 2019 Findings and Recommendations have already been adopted. 26 (See ECF No. 26.) As a result, the Court can no longer extend the deadline for filing objections 27 to the Findings and Recommendations. To the extent Petitioner seeks relief from judgment, the 28 motion is DENIED. 1 First, to the extent Petitioner’s Motion for Reconsideration is brought pursuant to Rule 59, 2 it is untimely. Fed. R. Civ. P. 59. Rule 59 states that the Petitioner’s motion must be filed within 3 twenty-eight (28) days after the entry of judgement. Fed. R. Civ. P. 59(b). Here, Petitioner filed 4 the instant motion thirty-three (33) days after the entry of judgment. (ECF No. 28.) 5 Furthermore, construing Petitioner’s motion as a Motion for Reconsideration under Rule 6 60(b)(1), it lacks merit. In a two-page motion that Petitioner styles as a “Declaration,” Petitioner 7 appears to argue that he could not file objections to the Findings and Recommendations due to 8 excusable neglect. (Id. at 1–2.) Specifically, Petitioner asserts he could not submit his objections 9 for the following reasons: (1) Petitioner allegedly received total knee replacement surgery, for 10 which he was transferred to a “medical yard for care, treatment etc.” on September 30, 2019; and 11 (2) Petitioner claims there was a prison lockdown from December 2 to December 31, 2019. (Id. 12 at 1–2.) For those reasons, Petitioner argues he could not file Objections to the Findings and 13 Recommendations before the Order and Judgment were issued by the Court. (Id. at 2.) Thus, 14 Petitioner is requesting the Court to grant his Motion for Reconsideration so he can file 15 Objections to the Findings and Recommendations. (Id. at 2.) 16 Petitioner’s arguments are unavailing. The Findings and Recommendations were filed on 17 August 6, 2019, nearly two months before Petitioner claims he was incapable of filing objections 18 due to his surgery. (ECF No. 23.) Additionally, Petitioner received a thirty-day extension of 19 time, which provided ample time for Petitioner to file objections even after his surgery or, 20 alternatively, to request another extension of time. (ECF No. 24.) Yet Petitioner failed to do 21 either, and on December 20, 2019, after Petitioner’s extension of time had long since expired and 22 having received no objections, this Court adopted in full the Findings and Recommendations and 23 dismissed the Petition. (ECF No. 26.) Petitioner’s argument that he could not timely file 24 Objections to the Findings and Recommendations because of a lockdown that occurred in 25 December 2019 is also unavailing. The purported lockdown occurred a month and a half after the 26 date Petitioner’s objections were due. 27 Finally, Petitioner fails to articulate any objections to the Findings and Recommendations, 28 new arguments, new or different facts, or new circumstances to meet the threshold for 1 reconsideration, including the requirements set forth under Local Rule 230(j). E.D. Cal. L.R. 2 230(j)(3)–(4). Accordingly, Petitioner fails to satisfy the requirements under Rule 60. For these 3 reasons, Petitioner’s motion must be DENIED. 4 IV. CONCLUSION 5 For the foregoing reasons, Petitioner’s Motion for Reconsideration is hereby DENIED. 6 (ECF No. 28.) 7 IT IS SO ORDERED. 8 DATED: May 5, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28