Herrera v. Gipson

Filing 8

ORDER Denying Petitioner's Motion For Reconsideration (Doc. 7 ), signed by Magistrate Judge Gary S. Austin on 1/28/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERTO HERRERA,

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Petitioner,

1:12-CV-02005 GSA HC
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION

v.
[Doc. #7]

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CONNIE GIPSON,

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

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to 28 U.S.C. § 636(c).

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On January 3, 2013, the undersigned issued an order dismissing the petition for failure to

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state a cognizable claim and failure to exhaust administrative and state court remedies. On January

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22, 2013, Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil Procedure

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§ 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;
(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);

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U .S. D istrict C ourt
E. D . C alifornia

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(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 does not set forth any arguments or evidence

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that have not already been considered by this Court. The federal petition was filed beyond the

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expiration of the statute of limitations, and Petitioner has not sought relief either administratively or

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in the state courts. Petitioner’s arguments present no basis for relief.

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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:
6i0kij

January 28, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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U .S. D istrict C ourt
E. D . C alifornia

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