Black v. Virga

Filing 25

ORDER Denying Motion For Reconsideration (Doc. 23 ), signed by Magistrate Judge Michael J. Seng on 9/18/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODERICK TYRELL BLACK,
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Petitioner,
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v.

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TIM VIRGA, Warden,
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Respondent.
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1:11-cv-02089 MJS HC
O RDE R DE NYING
RECONSIDERATION

MO T I O N

FO R

(Doc. 23.)

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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.
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On July 16, 2012, the undersigned granted Respondent's motion to dismiss. On August
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16, 2012, Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil
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Procedure § 60(b).
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Rule 60(b) of the Federal Rules of Civil Procedure provides:
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On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

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Petitioner argues that there is no time limitation on correcting his alleged unauthorized

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sentence. He further argues that the Court mistakenly invoked the one-year statute of

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limitations under 28 U.S.C. § 2244(d)(1) to his claim under Cunningham v. California, 549 U.S.

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270 (2007). (ECF No. 23 at 6.)

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The one-year statute of limitations period applies to every federal claim, and Petitioner

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has not provided a sufficient showing of equitable tolling or the application of a later trigger

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date of the limitations period. Petitioner has not provided any basis for relief from the dismissal

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of his petition. Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (A reconsideration

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motion is properly denied where it merely presents arguments previously raised in the prior

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motion or opposition.)
Petitioner is not entitled to relief from judgment and motion for reconsideration is

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DENIED.

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IT IS SO ORDERED.

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Dated:
ci4d6

September 18, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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