Wynn v. Uttecht

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 LAMAR SHADEED WYNN, NO: 2:19-CV-0192-TOR 8 Petitioner, ORDER DENYING CONSTRUED 9 v. MOTION FOR RECONSIDERATION

10 STATE OF WASHINGTON, and JEFFERY A. UTTECHT, 11 Respondents. 12

13 BEFORE THE COURT is Petitioner’s construed Motion for Reconsideration, 14 ECF No. 7. This matter was submitted for consideration without oral argument. The 15 Court has reviewed the record and is fully informed. For the reasons set forth below, 16 the Motion for Reconsideration is DENIED. 17 By Order filed July 25, 2019, the Court summarily dismissed Mr. Wynn’s pro 18 se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 19 U.S.C. § 2254. ECF No. 5. Petitioner conceded that he did not fully exhaust his 20 state court remedies before filing his petition. 28 U.S.C. § 2254(b); Baldwin v. 1 Reese, 541 U.S. 27 (2004); O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Exhaustion 2 is required.

3 The Court found Petitioner’s assertion that the failure to prosecute him by 4 indictment, rather than by information, was legally frivolous. See Gaines v. State of 5 Washington, 277 U.S. 81, 86 (1928) (“Prosecution by information instead of by

6 indictment is provided for by the laws of Washington. This is not a violation of the 7 Federal Constitution.”). In his construed Motion for Reconsideration, Petitioner 8 disputes the holding of Gaines and contends that the State of Washington must have 9 an “indictment by the Grand Jury” to justify the criminal legal process taken against

10 him. ECF No. 7 at 6-14. Petitioner’s request is squarely foreclosed by Gaines. 11 A motion for reconsideration may be reviewed under either Federal Rule of 12 Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief

13 from judgment). Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 14 1993). “A district court may properly reconsider its decision if it ‘(1) is presented 15 with newly discovered evidence, (2) committed clear error or the initial decision was 16 manifestly unjust, or (3) if there is an intervening change in controlling law.’” Smith

17 v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting School Dist. 18 No. 1J, 5 F.3d at 1263). “There may also be other, highly unusual, circumstances 19 warranting reconsideration.” School Dist. No. 1J, 5 F.3d at 1263. These standards

20 apply in habeas corpus proceedings under 28 U.S.C. § 2254 to the extent they are 1 |] not inconsistent with applicable federal statutory provisions and rules. See Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). 3 In this instance, Petitioner has not presented newly discovered evidence. See 4|| School Dist. No. IJ, 5 F.3d at 1263. He has not shown that the Court committed 5|| clear error or that the dismissal Order was manifestly unjust. Furthermore, there has 6|| been no intervening change in controlling law and there are no other circumstances warranting reconsideration. Id. 8 ACCORDINGLY, IT IS ORDERED: 9 Petitioner’s construed Motion for Reconsideration, ECF No. 7, is DENIED. 10|| The Clerk of Court is directed to enter this Order and provide a copy to Petitioner. The file shall remain closed. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there 13]] 1s no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability is therefore DENIED. 15 DATED August 30, 2019.

17 << hiwas. 0. Kies a KS THOMAS O. RICE 18 “— Chief United States District Judge 19 20