Evans v. Hartley

Filing 21

ORDER DENYING Petitioner's 20 Motion For Reconsideration signed by Magistrate Judge Sheila K. Oberto on 10/20/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATIF R. EVANS,

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Petitioner,

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1:11-cv-01424-LJO-SKO (HC)
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

vs.
HARTLEY,

(DOCUMENT #20)
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Respondent.
____________________________________/

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On September 15, 2011, the Court denied Petitioner’s motion for appointment of

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counsel on the ground that the interests of justice did not require appointment of counsel. On

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September 26, 2011, Petitioner filed a motion for reconsideration, which was denied on

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October 3, 2011. On October 12, 2011, Petitioner filed a document entitled, “Objections to

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Denial of Reconsideration of Appointment of Counsel, Order to Vacate and Reverse,” in which

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Petitioner reiterated his argument that counsel should be appointed for him to file a traverse.

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Petitioner did not indicate that he sought reconsideration by the District Judge as is required by

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Local Rule 303(c) if the motion is directed to the District Judge. Accordingly, the Court

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understands the present motion to be directed to the Magistrate Judge.

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Petitioner’s motion is in effect his second motion for reconsideration of his motion for

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the appointment of counsel.

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A. Standards for Appointment of Counsel

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There exists no absolute right to appointment of counsel in habeas proceedings. See

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e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958), cert. denied, 358 U.S. 889 (1958);

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Mitchell v. Wyrick, 727 F.2d 773 (8th Cir. 1984), cert. denied, 469 U.S. 823 (1984).

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A Magistrate Judge may appoint counsel at any stage of a habeas corpus proceeding if

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the interests of justice require it. 18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section

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2254 Cases. A district court evaluates the likelihood of a petitioner’s success on the merits and

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the ability of a petitioner to articulate his claims pro se in light of the complexity of the legal

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issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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B. Relief pursuant to Fed. R. Civ. P. 59(e)

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Motions for reconsideration may be considered pursuant to the standards of Fed. R.

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Civ. P. 59(e) or 60(b). United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1130

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(E.D. Cal. 2001). The Court will assume that Rules 59(e) and 60(b) apply to Petitioner’s

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motion.

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Petitioner does not appear to state grounds sufficient to warrant relief pursuant to Fed.

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R. Civ. P. 59(e), which is appropriate when there are highly unusual circumstances, the district

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court is presented with newly discovered evidence, the district court committed clear error, or a

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change in controlling law intervenes. School Dist. No. 1J, Multnomah County, Oregon v.

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AcandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). To avoid being frivolous, such a motion must

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provide a valid ground for reconsideration. See, MCIC Indemnity Corp. v. Weisman, 803 F.2d

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500, 505 (9th Cir. 1986).

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Here, there has been no demonstration of unusual circumstances, newly discovered

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evidence, or intervening change in controlling law. The denial of Petitioner’s motion was not

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clearly erroneous; Petitioner’s alleged denial of a right to counsel at a point in criminal

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proceedings at which he had a constitutional right to counsel does not bear upon the likelihood

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of his success in this proceeding, in which no answer has yet been filed, and it has not yet been

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determined whether an evidentiary hearing will take place. There is no showing that the

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interests of justice require the appointment of counsel.
C. Relief pursuant to Fed. R. Civ. P. 60
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of

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the district court. The rule permits a district court to relieve a party from a final order or

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judgment on grounds including but not limited to 1) mistake, inadvertence, surprise, or

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excusable neglect; 2) newly discovered evidence; 3) fraud, misrepresentation, or misconduct by

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an opposing party; or 4) any other reason justifying relief from the operation of the judgment.

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Fed. R. Civ. P. 60(b). The motion for reconsideration must be made within a reasonable time,

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and in some instances, within one year after entry of the order. Fed. R. Civ. P. 60(c).

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Rule 60(b) generally applies to habeas corpus proceedings. See, Gonzalez v. Crosby,

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545 U.S. 524, 530-36 (2005). Although the Court has discretion to reconsider and vacate a

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prior order, Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994), motions for reconsideration

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are disfavored. A party seeking reconsideration must show more than a disagreement with the

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Court's decision and offer more than a restatement of the cases and arguments considered by

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the Court before rendering the original decision. United States v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). Motions to reconsider pursuant to Rule 60(b)(1) are

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committed to the discretion of the trial court, Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.

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1983), which can reconsider interlocutory orders and redetermine applications because of an

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intervening change in controlling law, the availability of new evidence or an expanded factual

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record, or the need to correct a clear error or prevent manifest injustice. Kern-Tulare Water

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

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

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Local Rule 230(j) provides that whenever any motion has been granted or denied in

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whole or in part, and a subsequent motion for reconsideration is made upon the same or any

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alleged different set of facts, counsel shall present to the Judge or Magistrate Judge to whom

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such subsequent motion is made an affidavit or brief, as appropriate, setting forth the material

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facts and circumstances surrounding each motion for which reconsideration is sought,

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including information concerning the previous judge and decision, what new or different facts

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or circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, what other grounds exist for the motion, and why the facts or circumstances were not

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shown at the time of the prior motion.

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Here, Petitioner has not shown any facts or law that reflect any abuse of discretion,

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clear error, or manifest injustice. Further, Petitioner has not complied with the requirements of

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Local Rule 230(j).

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Therefore, Petitioner’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated:
ie14hj

October 20, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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