Opinion
No. C 05-2870 MHP (pr).
November 6, 2007
ORDER
Petitioner's "motion of objection" to the order denying his petition for writ of habeas corpus is construed to be a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment and is DENIED. A Rule 59(e) motion "`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.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). The court did not commit clear error in determining that petitioner's fifth claim was a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), and not an insufficient evidence claim under In re Winship, 397 U.S. 358, 364 (1970), especially since petitioner did not cite Winship in his petition. Further, to the extent petitioner wants to cast § 667.61(a) as a substantive offense, then it would follow that § 667.61(b) is a lesser-included offense and the sentence was proper as explained at pages 24-25 of the order denying the petition.
IT IS SO ORDERED.