Filed: Dec. 26, 2018
Latest Update: Dec. 26, 2018
Summary: ORDER DENYING CONSTRUED MOTION FOR RECONSIDERATION EDWARD F. SHEA , Senior District Judge . On October 5, 2018, Defendant Antonio Aguilar-Lopez filed "Petitioner's Memorandum Brief Motion Reply to the Government's Order Denying Defendant's Petition for Writ of Error Coram Nobis 1651 Pursuant Motion 2255(F)(1)-(4), was Untimely Motion Which Should Be Summarily Dismissed (Ineffective Assistance of the Counsel)," ECF No. 283. The Court notes that Mr. Aguilar-Lopez uses the term "Writ of Er
Summary: ORDER DENYING CONSTRUED MOTION FOR RECONSIDERATION EDWARD F. SHEA , Senior District Judge . On October 5, 2018, Defendant Antonio Aguilar-Lopez filed "Petitioner's Memorandum Brief Motion Reply to the Government's Order Denying Defendant's Petition for Writ of Error Coram Nobis 1651 Pursuant Motion 2255(F)(1)-(4), was Untimely Motion Which Should Be Summarily Dismissed (Ineffective Assistance of the Counsel)," ECF No. 283. The Court notes that Mr. Aguilar-Lopez uses the term "Writ of Err..
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ORDER DENYING CONSTRUED MOTION FOR RECONSIDERATION
EDWARD F. SHEA, Senior District Judge.
On October 5, 2018, Defendant Antonio Aguilar-Lopez filed "Petitioner's Memorandum Brief Motion Reply to the Government's Order Denying Defendant's Petition for Writ of Error Coram Nobis § 1651 Pursuant Motion § 2255(F)(1)-(4), was Untimely Motion Which Should Be Summarily Dismissed (Ineffective Assistance of the Counsel)," ECF No. 283. The Court notes that Mr. Aguilar-Lopez uses the term "Writ of Error of Coram Nobis," in the title of his brief. Id. However, his arguments do not correspond to the Court's Order denying Mr. Aguilar-Lopez's Petition for Writ of Coram Nobis, ECF No. 280. See generally ECF No. 283. Instead, he reiterates the same arguments he presented in his 2015 "Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255," ECF Nos. 257, 260.1 He also cites to and challenges the Court's Order denying the same, ECF No. 261. See ECF No. 283. The Court therefore construes the October 5, 2018 brief as a Motion for Reconsideration of ECF No. 261.2
On December 21, 2018, Mr. Aguilar-Lopez filed a "Memorandum Brief Motion Supplement of his Reply to the Government Order Denying for Writ of Error Coram Nobis § 1651 Pursuant § 2255 Motion (F)(1)-(4), was Untimely his Reply was Submitted on October 2, 2018 As Granted Relief-(Ineffective Assistance of the Counsel)."3 ECF No. 285. This filing is an exact copy of a previous motion Mr. Aguilar-Lopez entered for leave to file a successive § 2255 petition in cause number 2:09-CR-06045-EFS. See id; see also 2:09-CR-06045-EFS, ECF No. 148. However, the title of the document states that it is a "supplement" to the brief that contains a similar title as the construed Motion for Reconsideration, and it references the Motion's signing date. See ECF Nos. 283, 285. Therefore, the Court construes the brief, ECF No. 285, as a supplement to the construed Motion for Reconsideration, ECF No. 283.
Federal Rule of Civil Procedure 59(e) states that a motion to amend or reconsider a judgment "must be filed no later than 28 days after the entry of the judgment." The Court's Order denying Mr. Aguilar-Lopez's § 2255 motion was docketed on July 23, 2015—over three years ago. ECF No. 261. The Court therefore declares Mr. Aguilar-Lopez's construed Motion for Reconsideration to be untimely.4
Even if Mr. Aguilar-Lopez's Motion for Reconsideration was timely, reconsideration is an "extraordinary remedy" that should not be granted absent "highly unusual circumstances," such as where (1) newly discovered evidence has emerged; (2) the Court committed clear error; or (3) there was an intervening change in the controlling law. Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Mr. Aguilar-Lopez has not demonstrated such unusual circumstances. As such, and for the reasons stated above, the Court denies Mr. Aguilar-Lopez's construed Motion for Reconsideration, ECF No. 283.
Accordingly, IT IS HEREBY ORDERED:
1. Defendant Antonio Aguilar-Lopez's "Petitioner's Memorandum Brief Motion Reply to the Government's Order Denying Defendant's Petition for Writ of Error Coram Nobis § 1651 Pursuant Motion § 2255(F)(1)-(4), was Untimely Motion Which Should Be Summarily Dismissed (Ineffective Assistance of the Counsel)," ECF No. 283, is CONSTRUED as a Motion for Reconsideration and is DENIED. This file shall remain CLOSED.
2. The Clerk's Office is directed to ENTER JUDGMENT pursuant to Federal Rule of Civil Procedure 58(a), for the United States, in the related civil file, No. 4:15-cv-05030-EFS. The civil file shall remain CLOSED.
3. The Court DECLINES to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and to provide copies to Mr. Aguilar-Lopez and the United States Attorney's Office for the Eastern District of Washington.
