(HC)Kindred v. Cisneros

Opinion

Lloyd Leslie Kindred, No. 2:21-cv-00750-KJM-EFB Petitioner, ORDER v. T. Cisneros, 1S Respondent. Petitioner Lloyd Kindred moves for reconsideration of the court’s order adopting the Magistrate Judge’s findings and recommendations. See Mot. Recons., ECF No. 25; Order, ECF No. 23. “Under Rule 59(e), a motion for reconsideration should not be 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 the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted). Mr. Kindred presents “newly discovered evidence,” namely an unsigned and unauthenticated email from his trial attorney saying she “hurt [her] back halfway through [his] trial.” See Ex. B at 8, ECF No. 25. Even if the email were authenticated, Mr. Kindred explains neither why his trial counsel’s injury rendered her performance unreasonable nor how it prejudiced him, stating only that the “injury made her performance level so low as it affected her job performance.” Mot. Recons. at 2. This “newly discovered evidence” does not support relief under Rule 59(e). See Far Out Products,

Inc. v. Oskar, 247 F.3d 986, 998 (9th Cir. 2001) (to compel relief under Rule 59(e), new evidence must be “of such magnitude that it would likely have changed the outcome of the case”). Nor does it justify a delayed commencement of the statute of limitations under § 2244(d)(1)(D). Mr. Kindred also requests that the court issue a certificate of appealability. See ECF No. 26. A court may only issue a certificate of appealability “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The applicant must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). On this record, the court finds that jurists of reason would not debate whether the petition states a valid claim, nor could they find it debatable whether the court is correct in its ruling. Thus, no certificate of appealability will issue. Mr. Kindred’s requests are denied. This order resolves ECF Nos. 25 & 26. DATED: March 22, 2022.