United States District Court, E.D. Washington
ERIC M. HARRIS, Petitioner,
STATE OF WASHINGTON, Respondent.
ORDER DENYING MOTION FOR RECONSIDERATION
SALVADOR MENDOZA, JR. UNITED STATES DISTRICT JUDGE
the Court, without oral argument, is Petitioner Eric M.
Harris's Motion for Reconsideration, ECF No. 7. Having
reviewed the pleadings and the file in this matter, the Court
is fully informed and denies the motion.
Order filed July 9, 2019, the Court summarily dismissed
Petitioner's pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254, ECF No. 1, on
three separate bases, ECF No. 5. First, Petitioner failed to
name a proper respondent. Id. at 1; see also
Rumsfeld v. Padilla, 542 U.S. 426 (2004); Stanley v.
Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Second, as Petitioner conceded, he also failed to exhaust
available state court remedies before filing the petition.
ECF No. 1 at 2; see also 28 U.S.C. § 2254(b);
Baldwin v. Reese, 541 U.S. 27 (2004);
O'Sullivan v. Boerckel, 526 U.S. 838 (1999).
Finally, the Court ruled that the grounds on which Petitioner
based his petition-that he was prosecuted by information
rather than indictment-were “legally frivolous.”
ECF No. 5 at 4 (citing Gaines v. Washington, 277
U.S. 81, 86 (1928)).
Motion for Reconsideration, Petitioner contends that, because
a habeas corpus petition is an “original action”
and not an appeal or a “mechanism requesting the review
of [his] judgment of conviction, ” he is not required
to exhaust his state court remedies. ECF No. 7 at 1. As a
matter of law, that is incorrect-this Court is statutorily
prohibited from considering a petition for a writ of habeas
corpus unless and until “the applicant has exhausted
the remedies available in the courts of the State.”
See 28 U.S.C. § 2254(b)(1)(A). Furthermore,
federal law clearly recognizes the jurisdiction of state
courts to adjudicate constitutional issues, providing for
federal habeas corpus relief only when a state court's
adjudication was “contrary to, or an unreasonable
application of, clearly established federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
reasserts that his conviction and sentence are invalid
because he was not charged by an indictment in violation of
the Fifth Amendment. ECF No. 7 at 4. This contention is
wholly meritless. There is no federal constitutional
violation when a prosecuting attorney's criminal
information is substituted for the grand jury's
indictment. Gaines v. Washington, 277 U.S. 81, 86
(1928) (“Prosecution by information instead of by
indictment is provided for by the laws of Washington. This is
not a violation of the Federal Constitution.” (citing
Hurtado v. California, 110 U.S. 516 (1886)).
motion for reconsideration may be reviewed under either
Federal Rule of Civil Procedure 59(e) (motion to alter or
amend a judgment) or 60(b) (relief from judgment). Sch.
Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993). “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.'” Smith
v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir.
2013) (quoting Sch. Dist. No. 1J, 5 F.3d at 1263).
“There may also be other, highly unusual, circumstances
warranting reconsideration.” Sch. Dist. No.
1J, 5 F.3d at 1263. These standards apply in habeas
corpus proceedings under 28 U.S.C. § 2254 to the extent
they are not inconsistent with applicable federal statutory
provisions and rules. See Gonzalez v. Crosby, 545
U.S. 524, 530 (2005).
Petitioner has not presented newly discovered evidence. He
has not shown that the Court committed clear error or that
the dismissal order was manifestly unjust. Furthermore, there
has been no intervening change in controlling law and there
are no other circumstances warranting reconsideration.
IT IS HEREBY ORDERED:
Motion for Reconsideration, ECF No. 7, is
IS SO ORDERED. The Clerk's Office is directed to
enter this Order and provide a copy to pro se
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 is
no basis upon which to issue a certificate of appealability.
See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
A certificate of appealability is therefore
 Petitioner has failed to establish
that either of the two narrow exceptions to the exhaustion
requirement-where “there is an absence of available
State corrective process” or “circumstances exist
that render such process ineffective to protect the rights of
the applicant”-apply in his case. 28 U.S.C. §