Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAURICE GRIFFIN, Case No.: 3:25-cv-2756-RBM-VET 12 Petitioner, ORDER: 13 v. (1) CONSTRUING PETITIONER’S 14 JEFF MACOMBER, RESPONSE TO COURT’S ORDER; 15 Respondent. (2) DENYING MOTION FOR 16 RECONSIDERATION OR RELIEF; 17 (3) DECLINING TO ISSUE 18 CERTIFICATE OF APPEALABILITY; 19 AND 20 (4) ENTERING FINAL JUDGMENT OF 21 DISMISSAL WITHOUT PREJUDICE 22 [Doc. 8] 23 24 25 On October 6, 2025, Petitioner, a state parolee and proceeding pro se, filed a Petition 26 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the Northern District of 27 California challenging his 2019 judgment of conviction and sentence in San Diego County 28 Superior Court case number SCD281192. (See Doc. 1 at 1.) After providing notice to 1 Petitioner that he had not paid the filing fee nor requested to proceed in forma pauperis 2 (see Doc. 2), on October 16, 2025, the case was transferred to this district. (Docs. 3–5.) 3 On October 28, 2025, the Court summarily dismissed the Petition without prejudice as 4 second or successive pursuant to 28 U.S.C. § 2244(b)(3)(A) and declined to issue a 5 certificate of appealability, finding: “Because there is no indication that the Ninth Circuit 6 Court of Appeals has granted Petitioner leave to file a second or successive petition, this 7 Court cannot consider the Petition, independent of Petitioner’s additional failure to satisfy 8 the filing fee requirement.” (Doc. 6 at 5.) While the case was dismissed and subsequently 9 closed, no judgment was entered. On November 10, 2025, Petitioner filed a Response to 10 the Court’s October 28, 2025 Order, which the Court will liberally construe as a motion 11 for reconsideration or relief from the Court’s October 28, 2025 dismissal order. (See Docs. 12 6, 8); see Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“Prisoner pro se pleadings 13 are given the benefit of liberal construction.”) (citing Erickson v. Pardus, 551 U.S. 89, 94 14 (2007) (per curiam)). For the reasons set forth below, Petitioner’s Motion is DENIED. 15 I. DISCUSSION 16 Petitioner contends his habeas petition is not second or successive and asserts 17 dismissal pursuant to 28 U.S.C § 2244 “would be improper.” (Doc. 8 at 1.) However, 18 Petitioner does not specify the basis under which he moves for reconsideration of the 19 Court’s October 28, 2025 Order. (See generally Doc. 8.) 20 A motion for reconsideration of a Court’s final judgment or order may be based on 21 Federal Rule of Civil Procedure 59(e) or Federal Rule of Civil Procedure 60(b). See School 22 Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993) (“A 23 district court may reconsider its grant of summary judgment under either Federal Rule of 24 Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 25 judgment).”) A motion for reconsideration filed within 28 days of the final order resulting 26 in judgment should be construed as a motion under Rule 59(e), while motions filed more 27 than 28 days after judgment should be construed as filed under Rule 60(b). See Rishor v. 28 Ferguson, 822 F.3d 482, 489–90 (9th Cir. 2016) (“The district court properly construed 1 [Petitioner’s] post-judgment motion for reconsideration, filed within twenty-eight days of 2 entry of judgment, as a motion to alter or amend the judgment under Federal Rule of Civil 3 Procedure 59(e).”) (footnote omitted) (citing Am. Ironworks & Erectors, Inc. v. N. Am. 4 Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001)). Additionally, the Local Rules of this 5 District provide for applications for reconsideration in relevant part “[w]henever any 6 motion or any application or petition for any order or other relief has been made to any 7 judge and has been refused in whole or in part, . . .” S.D. Cal. CivLR 7(i)(1). 8 Here, Petitioner’s motion for reconsideration or relief is timely considered under 9 both Federal Rule of Civil Procedure 59(e) and Local Rule 7(i) because it was submitted 10 prior to entry of judgment and within 28 days of the order from which Petitioner seeks 11 reconsideration or relief. See Rishor, 822 F.3d at 489–90; see also S.D. Cal. CivLR 7(i)(2) 12 (“Except as may be allowed under Rules 59 and 60 of the Federal Rules of Civil Procedure, 13 any motion or application for reconsideration must be filed within twenty-eight (28) days 14 after the entry of the ruling, order or judgment sought to be reconsidered.”) 15 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with newly 16 discovered evidence, (2) the district court committed clear error or made an initial decision 17 that was manifestly unjust, or (3) there is an intervening change in controlling law.’” 18 Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of 19 Oakland, 255 F.3d 734, 740 (9th Cir. 2001)); see also McDowell v. Calderon, 197 F.3d 20 1253, 1255 (9th Cir. 1999) (en banc) (per curiam) (“A motion for reconsideration under 21 Rule 59(e) ‘should not be granted, absent highly unusual circumstances, unless the district 22 court is presented with newly discovered evidence, committed clear error, or if there is an 23 intervening change in the controlling law.’”) (citing 389 Orange St. Partners v. Arnold, 24 179 F.3d 656, 665 (9th Cir. 1999)) (additional citation and footnote omitted). “District 25 courts have ‘considerable discretion’ in deciding Rule 59(e) motions.” Kaufmann v. 26 Kijakazi, 32 F.4th 843, 850 (9th Cir. 2022) (quoting Turner v. Burlington N. Santa Fe R.R. 27 Co., 338 F.3d 1058, 1063 (9th Cir. 2003)). 28 1 Petitioner does not offer or allege any newly discovered evidence, nor does he 2 contend there has been any intervening change in controlling law, but instead asserts the 3 Court erred in finding his Petition second or successive because his prior petition was not 4 adjudicated on the merits, and he therefore did not have a fair opportunity to litigate it. 5 (See generally Doc. 8.) Specifically, Petitioner contends his prior petition “was denied 6 solely for non-exhaustion, caused by lack of legal access during state-imposed confinement 7 in fire camp and deployment on wildfire assignments,” and “[b]ecause no court has ever 8 reviewed his claims on the merits, this current petition is not ‘second or successive.’” (Id. 9 at 4); (see also id. at 2) (Petitioner asserting his “prior federal habeas petition was dismissed 10 only because he had not yet presented his claims to the California Supreme Court-a 11 procedural issue caused entirely by his lack of access during fire-camp placement-not on 12 the merits.”); (see also id. at 3 (Petitioner asserting his “prior federal petition was dismissed 13 for non-exhaustion [and his] lack [of] legal access made exhaustion impossible.”).) 14 However, as explained in the October 28, 2025 Order, Petitioner’s prior federal 15 petition was dismissed both for failure to exhaust state judicial remedies and because the 16 petition was barred by the statute of limitations (see Doc. 6 at 2), and the Court further 17 found the timeliness issue (rather than exhaustion) controlled the second and 18 successiveness analysis, as follows: 19 [A]s noted previously, the January 3, 2025 Order dismissed the prior federal Petition with prejudice. … In that same Order, the Court specifically noted 20 with respect to the dismissal with prejudice that: ‘The Petition is barred by the 21 statute of limitations, rendering amendment futile.’ … The Ninth Circuit has held the ‘dismissal of a first habeas petition for untimeliness presents a 22 permanent and incurable bar to federal review of the underlying claims,’ and 23 as such, ‘dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for 24 purposes of the [Antiterrorism and Effective Death Penalty Act of 1996 25 (‘AEDPA’)].’ … Thus, the Court’s January 3, 2025 decision dismissing Petitioner’s 2023 federal habeas petition with prejudice, which was based in 26 part on the grounds of untimeliness for failure to comply with the statute of 27 limitations, renders the instant Petition second or successive. 28 1 (Doc. 6 at 3 (citations omitted).) 2 In his motion, Petitioner does not appear to specifically acknowledge this aspect of 3 the Court’s October 28, 2025 Order, and instead repeatedly and incorrectly insists his prior 4 federal petition was dismissed on the grounds of exhaustion alone.1 (See e.g. Doc. 8 at 2– 5 4.) Petitioner’s motion for reconsideration or relief is premised on this incorrect 6 characterization of the Court’s ruling, and he fails to demonstrate any “clear error” by the 7 Court or show that the Court’s decision finding this Petition second or successive was 8 “manifestly unjust.” Fed. R. Civ. P. 59(e). Accordingly, relief is not warranted under Rule 9 59(e). 10 Nor does Petitioner demonstrate entitlement to reconsideration pursuant to Local 11 Rule 7(i). Under that Local Rule, the party seeking reconsideration must show “what new 12 or different facts and circumstances are claimed to exist which did not exist, or were not 13 shown, upon such prior application.” S.D. Cal. CivLR 7(i)(1). Petitioner has not 14 articulated any such new or different facts pertinent to this Court’s decision and instead 15 simply disagrees with the Court’s October 28, 2025 determination that this Petition is 16 second and successive because the prior federal petition was dismissed in relevant part as 17 barred by the statute of limitations. 18 19 1 To the extent Petitioner attempts to relitigate the disposition of his prior federal petition 20 by now asserting that his fire camp deployment constituted “extraordinary circumstances” 21 that prevented him from earlier litigation and exhaustion and that he acted diligently in raising and exhausting his claims after returning from that deployment (see Doc. 8 at 2–3), 22 any potential reconsideration of that prior disposition, which was issued in an entirely 23 separate habeas action, is not the purview of this Court. In any event, in the prior habeas case, the assigned Magistrate Judge concluded in the Report and Recommendation 24 (“R&R”), adopted without objections as follows: “Having presented neither an argument 25 that extraordinary circumstances affected his filing nor a convincing presentation of diligence in pursuing his rights, Petition[er] has not established that he qualifies for 26 equitable tolling.” (S.D. Cal. Civil Case No. 23-cv-1205 LL-JLB, ECF 42 at 22 (R&R) 27 and ECF 48 at 3 (adopting R&R).) Any such argument, directed at the disposition of Petitioner’s prior federal habeas action and not the instant action, does not demonstrate 28 l Finally, the Court again declines to issue a certificate of appealability for the same 2 reasons previously stated in the October 28, 2025 Order. (See Doc. 6 at 4-5.) As the Court 3 || explained, “because Petitioner previously filed a petition challenging his 2019 judgment of 4 ||conviction and sentence 1n case number SCD281192 which was dismissed with prejudice 5 relevant part as barred by the statute of limitations rendering the instant Petition second 6 |}or successive, see McNabb, 576 F.3d at 1029, and there is no indication Petitioner has 7 || received permission from the Ninth Circuit Court of Appeals to file a second or successive 8 || petition, the Court is not persuaded that Petitioner has shown jurists of reason would find 9 || it debatable whether the district court was correct in dismissing the instant petition for lack 10 authorization.” (/d. at 5 (citation modified)). The Court remains unpersuaded that 11 || Petitioner has shown “jurists of reason would find it debatable whether the district court 12 || was correct” in denying the instant motion for reconsideration or relief. See 28 U.S.C. § 13 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000). 14 II. CONCLUSION AND ORDER 15 For the reasons discussed above, the Court CONSTRUES Petitioner’s Response as 16 ||a motion for reconsideration or relief from the Court’s October 28, 2025 dismissal order 17 ||(Doc. 8) and DENIES Petitioner’s motion for reconsideration or relief. The Court 18 || DECLINES to issue a certificate of appealability. The Clerk of Court is DIRECTED to 19 || enter a final judgment of dismissal without prejudice to Petitioner filing a petition in this 20 Court if he obtains the necessary order from the Ninth Circuit Court of Appeals. The 21 ||instant case will remain closed. 22 IT IS SO ORDERED. 23 ||Dated: April 1, 2026 FR Bo ? L > 24 HON. RUTH BERMUDEZ MONTENEGRO 25 UNITED STATES DISTRICT JUDGE 26 27 28