Benavente v. Biter

Filing 14

ORDER Denying Petitioner's Motion for Reconsideration 12 , signed by Magistrate Judge Barbara A. McAuliffe on 8/20/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAIME BENAVENTE,

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Petitioner,

1:12-CV-00257 BAM HC
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

v.
[Doc. #12]

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MARTIN D. BITER, Warden,
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Respondent.
____________________________________/

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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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Pending before the Court is Petitioner’s motion for reconsideration filed on August 15, 2012.
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Petitioner seeks to raise additional claims in this matter based on allegedly newly discovered
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evidence. 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:
(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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U .S. D istrict C ourt
E. D . C alifornia

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Petitioner fails to meet this standard. The instant petition was dismissed as successive on

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March 23, 2012. Regardless of whether Petitioner’s contention that the claims are based on newly

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discovered evidence is true, 28 U.S.C. § 2244 (b)(3)(A) provides: "Before a second or successive

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application permitted by this section is filed in the district court, the applicant shall move in the

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appropriate court of appeals for an order authorizing the district court to consider the application." In

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other words, Petitioner must obtain leave from the Ninth Circuit before Petitioner can file a second

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or successive petition in this Court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court

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must dismiss any second or successive petition unless the Court of Appeals has given Petitioner

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leave to file the petition because a district court lacks subject-matter jurisdiction over a second or

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successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart,

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105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96

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F.3d 990, 991 (7th Cir. 1996). Because the instant petition and any additional claims are successive,

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the Court lacks subject matter jurisdiction to consider them.

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Accordingly, IT IS HEREBY ORDERED that Petitioner’s motion for reconsideration is
DENIED.
IT IS SO ORDERED.
Dated:
10c20k

August 20, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
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