United States District Court, D. Hawaii
NOSHIR S. GOWADIA, Petitioner,
UNITED STATES OF AMERICA, Respondent. CRIM. No. 05-00486 SOM
ORDER DENYING MOTION FOR RECONSIDERATION; ORDER CONTINUING TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY
SUSAN OKI MOLLWAY CHIEF UNITED STATES DISTRICT JUDGE.
Proceeding pro se, Defendant Noshir S. Gowadia seeks reconsideration of an order of October 5, 2015, denying his Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody under 28 U.S.C. § 2255. The court denies the reconsideration motion without a hearing pursuant to Local Rule 7.2(d).
II. RECONSIDERATION STANDARD.
On October 5, 2015, the court denied Gowadia’s § 2255 motion and entered judgment. See Civ. No. 14-00481 SOM/KSC, ECF Nos. 6 and 7. Gowadia placed his motion for reconsideration into the prison mail system on or about October 28, 2015. See Crim. No. 05-00486 SOM, ECF No. 991-2 (mailing documentation). Because the motion was filed less than 28 days after the order denying the § 2255 motion was filed and judgment was entered, the court reviews the motion as brought under Rule 59(e) of the Federal Rules of Civil Procedure. Dugan v. United States, 2015 WL 5244341, at *4 (E.D.N.Y. Sept. 8, 2015) (“A motion for reconsideration of a judgment or an order disposing of a § 2255 petition is permitted under Rule 59(e) of the Federal Rules of Civil Procedure, which permits a party to file a motion to alter or amend the judgment within 28 days after entry of judgment.”); Holloway v. United States, 2010 WL 4791810, at *1 (N.D. Ind. Nov. 16, 2010) (“Mr. Holloway is now before the court seeking reconsideration of the denial of his § 2255 petition in reliance on Federal Rule of Civil Procedure 59(e), which is applicable because Mr. Holloway's motion was filed less than twenty-eight days after entry of the order he’s challenging.”); 11 Charles Alan Wright, et al., Federal Practice & Procedure § 2810.1 (“Rule 59(e) does, however, include motions for reconsideration.”) (3d ed. West 2015).
Rule 59(e) of the Federal Rules of Civil Procedure authorizes motions to alter or amend judgment. “The Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” 11 Charles Alan Wright, Arthur Miller, and Mary Kay Kane, Federal Practice & Procedure § 2810.1 (3d ed. West 2015).
A district court may properly reconsider its decision if it “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9thCir. 1993). Clear error occurs when “the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). “[R]econsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc). A decision whether to grant or deny a Rule 59(e) motion is committed to the sound discretion of this court. Id. n.1 (“the district court enjoys considerable discretion in granting or denying the motion”); see also Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (“denial of a motion for reconsideration is reviewed only for an abuse of discretion”).
A federal prisoner may move to vacate, set aside, or correct his or her sentence if it “was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255. On October 5, 2015, the court denied Gowadia’s motion seeking relief under § 2255. See Civ. No. 14-00481 SOM/KSC, ECF Nos. 6 and 7. Gowadia seeks reconsideration of that denial. The court now denies Gowadia’s reconsideration motion and, in light of that denial, continues to decline to issue a certificate of appealability.
A. Gowadia’s Reconsideration Motion Is Not a Second or Successive § 2255 Motion.
The court begins its analysis of Gowadia’s reconsideration motion with the Government’s contention that it is barred as a second or successive § 2255 motion. Under § 2255(h), a second or successive § 2255 motion is allowed only if an appellate court certifies that the new motion relies on a new rule of constitutional law (§ 2255(h)(2)), or is based on newly discovered evidence pursuant to which “no reasonable factfinder would have found the movant guilty of the offense” (§ 2255(h)(1)). Because Gowadia is timely seeking reconsideration of this court’s order, as opposed to asserting a new claim, the court does not read his most recent filing as a second or successive § 2255 motion that is barred by § 2255(h).
In contending that Gowadia’s reconsideration motion is barred by § 2255(h) unless certified by an appellate court, the Government says it is relying on Gonzalez v. Crosby, 545 U.S. 524 (2005), and Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998). The Government reads too much into those cases, which involved motions under Rule 60(b) of the Federal Rules of Civil Procedure. In Gonzalez, the Supreme Court cautioned against allowing new or previously litigated claims to be asserted in a Rule 60(b) motion that would skirt the requirements of § 2255(h), the sole exception being an attack based on a defect in the integrity of the federal habeas proceedings. Gonzalez, 545 U.S. at 532. The Supreme Court stated that a motion that advances a new claim for relief is barred by § 2255(h), and that a “claim” is barred by § 2255(h) when it attacks a previous resolution of a claim on the merits. Id.
Although Gowadia’s reconsideration motion attacks the merits of the denial of his § 2255 motion, the court is unpersuaded that § 2255(h) is applicable under the facts presented here. Gowadia timely sought reconsideration of the order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. “[A] timely motion under Rule 59 suspends the finality of the judgment for purposes of appeal.” Gonzales v. Terhune, 2006 WL 1795121, *1 (N.D. Cal. June 28, 2006); see also McCarthy v. Mayo, 827 F.2d 1310, 1313 n.1 (9th Cir. 1987) (timely filed motion under Rule 59(e) tolls time ...