3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HARRISTON LEE BASS, JR., Case No. 3:19-cv-00411-MMD-WGC 7 Petitioner, ORDER 8 v.
9 REGINA BAKER, et al.,
10 Respondents.
11 12 This closed habeas matter is before the Court on Petitioner Harriston Lee Bass, 13 Jr.’s Responses to Order (ECF Nos. 12, 13)1 and Motion for Order Requesting Relief 14 (ECF No. 14). For the reasons discussed below, to the extent Bass’s documents seek 15 reconsideration of the order dismissing his amended petition, those requests are denied. 16 I. BACKGROUND 17 Bass commenced this proceeding by filing a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The petition challenged a 2008 conviction and sentence 19 imposed by the Eighth Judicial District Court for Clark County.2 20 On initial screening, the Court ordered Bass to amend his Petition within 30 days 21 to correct certain defects in the pleading. (ECF No. 3.) Bass was instructed to refrain from 22 lengthy factual or legal argument and to use the court-approved form or write his amended 23 petition in substantial compliance with the form pursuant to Rule 2(d) of the Rules 24 Governing Section 2254 Cases. The Court specifically noted, “Petitioner at all times 25 remains responsible for calculating the applicable statute of limitations. In ordering 26
27 1It appears that ECF Nos. 13 and 14 are duplicative documents.
28 2The Court’s prior orders (ECF Nos. 3, 7, 10) fully outline the relevant procedural 1 [P]etitioner to amend his petition, the Court makes no finding or representation that either 2 the original or amended petition will be considered timely.” (Id. at 2 n.2.) 3 Bass filed an amended Petition. (ECF No. 4.) The Court conducted a second 4 screening and determined that the amended Petition failed to follow the Court’s 5 instructions because the new pleading still contained lengthy factual and legal argument 6 and omitted statements of exhaustion. (ECF No. 7.) The Court thus ordered Bass to file 7 a second amended petition within 30 days, incorporating the exhaustion pages after each 8 ground, and to refrain from lengthy factual and legal argument to the extent possible. In 9 addition, the Court ordered Bass to show cause (“OSC”) why the amended Petition should 10 not be dismissed with prejudice as untimely by responding in writing with specific, 11 detailed, and competent evidence. (Id.) 12 Although he did not file a second amended petition, Bass filed a two-part OSC 13 response (ECF Nos. 8, 9) asserting that there “is no time bar.” (ECF No. 8 at 1.) On 14 November 21, 2019, the Court dismissed the amended Petition with prejudice as untimely 15 and denied the remaining motions. (ECF No. 10.) The Court noted that Bass failed to file 16 a second amended petition by October 26, 2019.3 “Nevertheless, because [Bass’s] OSC 17 response fail[ed] to demonstrate timeliness, the Court [found] that further amendment 18 would be futile and dismisse[d] the amended petition.” (Id. at 2 n.3.) 19 II. DISCUSSION 20 Bass filed his current responses and motion in the month following the dismissal 21 order. The documents state that he is supplementing his OSC response. Bass claims that 22 the law library at the Lovelock Correctional Center mishandled his OSC response 23 because the two-part response was timely presented to the law librarian for filing. 24 3Although October 26, 2019, was 30 calendar days after the Court issued the OSC, 25 that date fell on a Saturday when the Clerk’s office was closed. Under the Federal Rules of Civil Procedure, any deadline that falls on a day the Clerk’s office is inaccessible is 26 automatically “extended to the first accessible day that is not a Saturday, Sunday, or legal 27 holiday.” See Fed. R. Civ. P. 6(a)(3)(A). Thus, Bass’s deadline to file an OSC response and second amended petition was automatically extended until October 28. Bass filed a 28 two-part OSC response but never filed a second amended petition, either before or after 1 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or 2 amend a judgment must be filed no later than 28 days after the entry of the judgment.” 3 Fed. R. Civ. P. 59(e). A post-judgment motion for reconsideration in a habeas proceeding, 4 filed within 28 days of entry of the judgment, is properly construed as a motion to alter or 5 amend the judgment under Rule 59(e). Rishor v. Ferguson, 822 F.3d 482, 489-90 (9th 6 Cir. 2016) (citation omitted). 7 Although the responses and motion do not clearly state the relief Bass seeks, it 8 appears that he wants the Court to reconsider the dismissal of his amended Petition. Bass 9 filed his responses and motion between December 4 and 18, 2019. Because the 10 documents were each filed no later than 27 days after entry of the judgment on November 11 21, 2019, the Court treats them as a motion to alter or amend judgment under Rule 59(e). 12 As the Ninth Circuit has recognized, “a Rule 59(e) motion is an extraordinary 13 remedy, to be used sparingly in the interests of finality and conservation of judicial 14 resources.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (quotation omitted). 15 Absent highly unusual circumstances, reconsideration under Rule 59(e) is “available only 16 when (1) the court committed manifest errors of law or fact, (2) the court is presented with 17 newly discovered or previously unavailable evidence, (3) the decision was manifestly 18 unjust, or (4) there is an intervening change in the controlling law.” Rishor, 822 F.3d at 19 491-92; see also Wood, 759 F.3d at 1121 (citing McDowell v. Calderon, 197 F.3d 1253, 20 1255 (9th Cir. 1999) (en banc)). 21 “A motion for reconsideration is not an avenue to re-litigate the same issues and 22 arguments upon which the court already has ruled.” W. Shoshone Nat. Council v. United 23 States, 408 F. Supp. 2d 1040, 1053 (D. Nev. 2005). The fact that a litigant disagrees with 24 the court’s decision, but fails to present a legitimate basis for the court to reconsider its 25 decision, will not entitle the litigant to relief. E.g., Backlund v. Barnhart, 778 F.2d 1386, 26 1388 (9th Cir. 1985) (holding that a district court properly denied a motion to reconsider 27 in which plaintiff presented no arguments that were not already raised in his original 28 motion). 1 Nothing in Bass’s responses and motion convinces the Court that it clearly erred 2 || in dismissing this action as untimely. The documents do not cite—let alone attempt to 3 || comply with—the applicable legal standard for reconsideration. Bass argues that his OSC 4 || response was timely filed. (ECF No. 12 at 1-2.) This argument misses the mark. The 5 || Court did not find that Bass’s OSC response was untimely. Rather, the Court thoroughly 6 || considered the OSC response and found that it “fail[ed] to provide any facts to show that 7 || his original federal petition was timely filed.” (ECF No.
Free access — add to your briefcase to read the full text and ask questions with AI
3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 HARRISTON LEE BASS, JR., Case No. 3:19-cv-00411-MMD-WGC 7 Petitioner, ORDER 8 v.
9 REGINA BAKER, et al.,
10 Respondents.
11 12 This closed habeas matter is before the Court on Petitioner Harriston Lee Bass, 13 Jr.’s Responses to Order (ECF Nos. 12, 13)1 and Motion for Order Requesting Relief 14 (ECF No. 14). For the reasons discussed below, to the extent Bass’s documents seek 15 reconsideration of the order dismissing his amended petition, those requests are denied. 16 I. BACKGROUND 17 Bass commenced this proceeding by filing a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The petition challenged a 2008 conviction and sentence 19 imposed by the Eighth Judicial District Court for Clark County.2 20 On initial screening, the Court ordered Bass to amend his Petition within 30 days 21 to correct certain defects in the pleading. (ECF No. 3.) Bass was instructed to refrain from 22 lengthy factual or legal argument and to use the court-approved form or write his amended 23 petition in substantial compliance with the form pursuant to Rule 2(d) of the Rules 24 Governing Section 2254 Cases. The Court specifically noted, “Petitioner at all times 25 remains responsible for calculating the applicable statute of limitations. In ordering 26
27 1It appears that ECF Nos. 13 and 14 are duplicative documents.
28 2The Court’s prior orders (ECF Nos. 3, 7, 10) fully outline the relevant procedural 1 [P]etitioner to amend his petition, the Court makes no finding or representation that either 2 the original or amended petition will be considered timely.” (Id. at 2 n.2.) 3 Bass filed an amended Petition. (ECF No. 4.) The Court conducted a second 4 screening and determined that the amended Petition failed to follow the Court’s 5 instructions because the new pleading still contained lengthy factual and legal argument 6 and omitted statements of exhaustion. (ECF No. 7.) The Court thus ordered Bass to file 7 a second amended petition within 30 days, incorporating the exhaustion pages after each 8 ground, and to refrain from lengthy factual and legal argument to the extent possible. In 9 addition, the Court ordered Bass to show cause (“OSC”) why the amended Petition should 10 not be dismissed with prejudice as untimely by responding in writing with specific, 11 detailed, and competent evidence. (Id.) 12 Although he did not file a second amended petition, Bass filed a two-part OSC 13 response (ECF Nos. 8, 9) asserting that there “is no time bar.” (ECF No. 8 at 1.) On 14 November 21, 2019, the Court dismissed the amended Petition with prejudice as untimely 15 and denied the remaining motions. (ECF No. 10.) The Court noted that Bass failed to file 16 a second amended petition by October 26, 2019.3 “Nevertheless, because [Bass’s] OSC 17 response fail[ed] to demonstrate timeliness, the Court [found] that further amendment 18 would be futile and dismisse[d] the amended petition.” (Id. at 2 n.3.) 19 II. DISCUSSION 20 Bass filed his current responses and motion in the month following the dismissal 21 order. The documents state that he is supplementing his OSC response. Bass claims that 22 the law library at the Lovelock Correctional Center mishandled his OSC response 23 because the two-part response was timely presented to the law librarian for filing. 24 3Although October 26, 2019, was 30 calendar days after the Court issued the OSC, 25 that date fell on a Saturday when the Clerk’s office was closed. Under the Federal Rules of Civil Procedure, any deadline that falls on a day the Clerk’s office is inaccessible is 26 automatically “extended to the first accessible day that is not a Saturday, Sunday, or legal 27 holiday.” See Fed. R. Civ. P. 6(a)(3)(A). Thus, Bass’s deadline to file an OSC response and second amended petition was automatically extended until October 28. Bass filed a 28 two-part OSC response but never filed a second amended petition, either before or after 1 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or 2 amend a judgment must be filed no later than 28 days after the entry of the judgment.” 3 Fed. R. Civ. P. 59(e). A post-judgment motion for reconsideration in a habeas proceeding, 4 filed within 28 days of entry of the judgment, is properly construed as a motion to alter or 5 amend the judgment under Rule 59(e). Rishor v. Ferguson, 822 F.3d 482, 489-90 (9th 6 Cir. 2016) (citation omitted). 7 Although the responses and motion do not clearly state the relief Bass seeks, it 8 appears that he wants the Court to reconsider the dismissal of his amended Petition. Bass 9 filed his responses and motion between December 4 and 18, 2019. Because the 10 documents were each filed no later than 27 days after entry of the judgment on November 11 21, 2019, the Court treats them as a motion to alter or amend judgment under Rule 59(e). 12 As the Ninth Circuit has recognized, “a Rule 59(e) motion is an extraordinary 13 remedy, to be used sparingly in the interests of finality and conservation of judicial 14 resources.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (quotation omitted). 15 Absent highly unusual circumstances, reconsideration under Rule 59(e) is “available only 16 when (1) the court committed manifest errors of law or fact, (2) the court is presented with 17 newly discovered or previously unavailable evidence, (3) the decision was manifestly 18 unjust, or (4) there is an intervening change in the controlling law.” Rishor, 822 F.3d at 19 491-92; see also Wood, 759 F.3d at 1121 (citing McDowell v. Calderon, 197 F.3d 1253, 20 1255 (9th Cir. 1999) (en banc)). 21 “A motion for reconsideration is not an avenue to re-litigate the same issues and 22 arguments upon which the court already has ruled.” W. Shoshone Nat. Council v. United 23 States, 408 F. Supp. 2d 1040, 1053 (D. Nev. 2005). The fact that a litigant disagrees with 24 the court’s decision, but fails to present a legitimate basis for the court to reconsider its 25 decision, will not entitle the litigant to relief. E.g., Backlund v. Barnhart, 778 F.2d 1386, 26 1388 (9th Cir. 1985) (holding that a district court properly denied a motion to reconsider 27 in which plaintiff presented no arguments that were not already raised in his original 28 motion). 1 Nothing in Bass’s responses and motion convinces the Court that it clearly erred 2 || in dismissing this action as untimely. The documents do not cite—let alone attempt to 3 || comply with—the applicable legal standard for reconsideration. Bass argues that his OSC 4 || response was timely filed. (ECF No. 12 at 1-2.) This argument misses the mark. The 5 || Court did not find that Bass’s OSC response was untimely. Rather, the Court thoroughly 6 || considered the OSC response and found that it “fail[ed] to provide any facts to show that 7 || his original federal petition was timely filed.” (ECF No. 10 at 4 (emphasis added).) To the 8 || extent he seeks reconsideration, Bass has not stated a meritorious reason to reconsider 9 || prior rulings and alter the judgment in this case. The Court will therefore deny Bass’s 10 || responses and motion. 11 Additionally, the Court stresses that parties must not communicate with the Court 12 || via letters or a “response to order.” A document requesting a court order (including any 13 || request for reconsideration of an order) must be styled as a motion, not a letter, and 14 || clearly state the relief sought. See Fed. R. Civ. P. 7. Any further responses to the Court’s 15 || orders will be disregarded. 16 || Ill ©CONCLUSION 17 It is therefore ordered that Petitioner Harriston Lee Bass, Jr.’s Responses to Order 18 || (ECF Nos. 12, 13) and Motion for Order Requesting Relief (ECF No. 14) are construed 19 || as a motion for reconsideration under Rule 59(e) and denied. 20 DATED THIS 27" day of January 2020. 21 / Che 22 MIRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE 24 25 26 27 28