Jose Francisco Nunes v. John Ashcroft, United States Attorney General

Jose Francisco Nunes appeals the district court’s denial of his motion for reconsideration. We conclude that the district court did not abuse its discretion in denying the motion because Nunes did not present new evidence, identify a change in controlling law, or identify any clear error. Furthermore, the district court did not abuse its discretion when it failed to treat Nunes’ motion as a request for leave to amend his habeas petition. The amendment requested asserts that Nunes should not be removed from the United States because his state burglary conviction does not constitute an aggravated felony under 8 U.S.C. § 1101 (a)(43)(G). This amendment would be futile. The same issue was raised and resolved by this court when we decided that Nunes was an aggravated felon and that we lacked jurisdiction over his petition for direct review. Accordingly, we affirm the district court’s denial of Nunes’ motion for reconsideration.

I.

Jose Francisco Nunes is a 38-year-old native and citizen of Portugal who immigrated to the United States in 1973. In 1998, Nunes was convicted of first degree burglary in violation of California Penal Code § 459, for which he was sentenced to confinement…