Barter v. Brown, et al.

Filing 16

ORDER DENYING 15 Petitioner's Second Motion for Reconsideration signed by Magistrate Judge Stanley A. Boone on 3/31/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEVI MICAH BARTER,

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Petitioner,

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v.
JERRY BROWN, Governor, et al.,
Respondents.

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1:14-cv-00151-SAB-HC
ORDER DENYING SECOND MOTION FOR
RECONSIDERATION
[ECF No. 15]

Petitioner is a state prisoner proceeding pro se with a petition for writ of mandamus pursuant to

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28 U.S.C. § 1361. On February 21, 2014, he consented to the jurisdiction of the Magistrate Judge

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pursuant to 28 U.S.C. § 636(c).

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On February 25, 2014, the Court dismissed the petition. Judgment was entered the same day.

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On March 10, 2014, Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil

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Procedure § 60(b). The Court denied the motion on March 14, 2014. On March 28, 2014, he filed a

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second motion for reconsideration.

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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);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

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(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’s second motion for reconsideration appears to be an attempt to file an amended

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petition for writ of habeas corpus. In this petition, he has withdrawn his claims concerning the warden

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of Kern Valley State Prison. It appears he now only seeks to challenge his conviction by claiming

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violations under Apprendi v. New Jersey, 530 U.S. 466 (2000) and California Proposition 36 of 2012.

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Petitioner is informed that the case is closed, and the Court finds no reason to reconsider the final

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order. As Petitioner was previously advised, any challenge to his underlying conviction must be

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presented by habeas petition in the district where he was convicted. Since Petitioner was convicted in

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the Los Angeles County Superior Court, the proper venue for a habeas action is the Central District of

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California.

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Accordingly, Petitioner’s motion for reconsideration is DENIED.

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IT IS SO ORDERED.
Dated:

March 31, 2014
UNITED STATES MAGISTRATE JUDGE

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