Smith v. Holland et al

Filing 15

ORDER Denying Petitioner's Motion for Reconsideration 14 , signed by Magistrate Judge Barbara A. McAuliffe on 11/27/12. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TROY WAYNE SMITH,

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Petitioner,

1:12-CV-01529 BAM HC
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

v.
[Doc. #14]

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K. HOLLAND, et al.,

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Respondents.
___________________________________/

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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. He consented to the jurisdiction of the magistrate judge pursuant to

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28 U.S.C. § 636(c).

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On November 1, 2012, the undersigned issued an order dismissing the petition with prejudice

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insofar as it plainly appeared from the petition and attached exhibits that Petitioner was not entitled

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to relief. The Clerk of Court entered judgment on the same date.

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On November 19, 2012, Petitioner filed a motion for reconsideration pursuant to Federal
Rules of Civil 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:
(1) mistake, inadvertence, surprise, or excusable neglect;

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(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 fails to meet this standard. Petitioner takes issue with the Court’s order dismissing

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his petition, but he fails to set forth any arguments or evidence that have not already been considered

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by this Court. In essence, Petitioner’s argument is that he has committed no act of misconduct from

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January 25, 2010 on, and therefore should not be sanctioned pursuant to Cal. Penal Code § 2933.6.

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As fully discussed in the Court’s dismissal order, his act of continuing to be an active gang member

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as defined under California law is an act of misconduct sanctionable under § 2933.6. Petitioner’s

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arguments present no basis for relief under Rule 60.

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Accordingly, Petitioner’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated:
10c20k

November 27, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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