Thomas v. Hartley

Filing 34

ORDER DENYING Petitioner's 33 Motion for Reconsideration signed by District Judge Lawrence J. O'Neill on 1/4/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS THOMAS,

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Petitioner,
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v.
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JAMES HARTLEY, Warden,
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Respondent.
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________________________________)

1:09-cv-02252 LJO MJS HC
ORDER DENYING PETITIONER'S
MOTION FOR RECONSIDERATION
(Doc. 33)

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I.

PROCEDURAL HISTORY

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 filed on October 19, 2009. (Pet., ECF No. 1.) In his petition,

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Petitioner contends, based on various constitutional grounds, that regulations and actions by

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the warden have improperly increased the term of his incarceration. On June 14, 2010, the

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Court ordered Respondent to file a response. (Order, ECF No. 15.) On August 13, 2010,

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Respondent filed a motion to dismiss the petition. (Mot. to Dismiss, ECF No. 18.) On

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December 7, 2010, the Magistrate Judge issued findings and a recommendation that the

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petition be dismissed for failure to state a cognizable claim. (Findings and Recommendation,

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ECF No. 21.) On February 3, 2010, the Court adopted the findings and recommendation, but

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instead of denying the petition, granted Petitioner leave to amend the petition to more clearly

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state his claims. (Order, ECF 23.)

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Petitioner filed a first amended petition on February 3, 2011. (First Am. Pet., ECF No.

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24.) On November 3, 2011, the Magistrate Judge again issued findings and a recommendation

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to dismiss the petition. (Findings and Recommendation, ECF No. 27.) On December 9, 2011,

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the Court adopted the findings and recommendation and dismissed the petition. (Order, ECF

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No. 29.)

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On December 13, 2011, Petitioner filed objections to the findings and recommendation,

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and on December 27, 2011, Petitioner filed a motion to vacate the order adopting the findings

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and recommendation. (Obj. and Mot. To Vacate, ECF Nos. 31, 33.) The Court has construed

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Petitioner's filings as a motion for reconsideration requesting that the Court reconsider its

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dismissal of the petition, reopen the matter, and grant petitioner relief. (Mot. to Vacate at 3.)

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II.

DISCUSSION

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment."

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in

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any event "not more than one year after the judgment, order, or proceeding was entered or

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taken." Id.

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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party

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to show the "new or different facts or circumstances claimed to exist which did not exist or

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were not shown upon such prior motion, or what other grounds exist for the motion." Motions

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to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking,

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825 F.2d 437, 441, 263 U.S. App. D.C. 300 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456,

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460 (9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd

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in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Here, Petitioner has failed to meet any of the requirements for granting a motion for

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reconsideration. He has not shown "mistake, inadvertence, surprise, or excusable neglect,"

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provided newly discovered evidence, shown the judgment to be either void or satisfied, or

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provide any other reasons justifying relief from judgment. Moreover, pursuant to the Court's

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Local Rules, Petitioner has not provided "new or different facts or circumstances claimed to

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exist which did not exist or were not shown upon such prior motion, or what other grounds

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exist for the motion." Local Rule 230(j).

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Instead, the arguments raised in the opposition to the findings and recommendation

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and the instant motion for reconsideration repeat the arguments presented the petition.

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Specifically, Petitioner alleges that the Board of Parole Hearings lacks authority and improperly

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lengthened the term of his sentence by not finding him suitable for parole. The court has

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already addressed these claims in its decision. Petitioner was sentenced to an indeterminate

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sentence, and while eligible, is not guaranteed release on parole. Accordingly, being found

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unsuitable for parole affects how long Petitioner will be incarcerated, but does not change the

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term of his sentence which includes an upper term of life in prison. Further, to the extent that

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Petitioner claims that the Board of Parole Hearings relied on impermissible evidence, this

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Court lacks authority to review claims of substantive due process relating to the decision to

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deny parole. Swarthout v. Cooke, 131 S.Ct. 859, 861-62, 178 L. Ed. 2d 732 (2011).
Because the Motion for Reconsideration provides no new evidence or circumstances

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that would satisfy the requirements of Rule 60(b), it must be denied.

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III.

Accordingly, it is ORDERED that Petitioner's Motion for Reconsideration (Doc. 33.) is

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ORDER

DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

January 4, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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