Vera v. Biter

Filing 15

ORDER DENYING Petitioner's Second Motion for Reconsideration 14 , signed by Magistrate Judge Jennifer L. Thurston on 7/25/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO VERA,

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Petitioner,
v.

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MARTIN BITER, Warden,

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Respondent.

) Case No.: 1:14-cv-00567-LJO-JLT
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) ORDER DENYING PETITIONER’S SECOND
) MOTION FOR RECONSIDERATION (Doc. 14)
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On May 30, 2014, the Court dismissed this habeas petition as successive, entered judgment

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against Petitioner and ordered the file closed. (Docs. 9 & 10). On June 22, 2015, Petitioner filed his

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first motion for reconsideration, contending that the Court erred in construing the petition as a

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successive petition since Petitioner is not challenging the 1997 conviction he challenged in the

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previous petition, but was instead challenging the enhancement related to that conviction. (Doc. 11).

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The Court denied that motion for reconsideration on June 24, 2015. (Doc. 12). On July 11, 2016,

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over two years after judgment was entered, Petitioner has filed his second motion for reconsideration,

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contending that a combination of mental and health problems, restricted access to legal and research

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materials, and a purported conspiracy by Respondent to prevent him from accessing the federal courts

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should entitle Petitioner to further collateral review. (Doc. 14). The Court disagrees.

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district
court. Rule 60(b) permits a district court to relieve a party from a final order or judgment on grounds
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of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3)

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fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6)

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any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). A

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motion under Rule 60(b) must be made within a reasonable time, in any event “not more than one year

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after the judgment, order, or proceeding was entered or taken.” Id.

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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to show

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the “new or different facts or circumstances claimed to exist which did not exist or were not shown

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upon such prior motion, or what other grounds exist for the motion.” Motions to reconsider are

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committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441

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(D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party

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must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.

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1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Petitioner has failed to meet the requirements for granting a motion for reconsideration: He has

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not shown “mistake, inadvertence, surprise, or excusable neglect.” He has not shown the existence of

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either newly discovered evidence or fraud. He has not established that the judgment is either void or

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satisfied and, finally, Petitioner has not presented any other reasons justifying relief from judgment.

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Moreover, pursuant to the Court’s Local Rules, Petitioner has not shown “new or different facts or

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circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what

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other grounds exist for the motion.” Local Rule 230(j). (Emphasis supplied).

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Rather, it appears that Petitioner fails to appreciate the legal posture of this case: (1) that the

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petition was dismissed for the sole reason that this Court lacks jurisdiction and Petitioner must first

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obtain permission to proceed from the Ninth Circuit, and (2) that the case has been closed for over

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two years, yet Petitioner has never appealed the Court’s order dismissing this case nor sought

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permission from the Ninth Circuit to proceed in this Court. Given these circumstances, further filings

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in cannot yield the results Petitioner seeks.

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In sum, Petitioner has provided no evidence or circumstances that would satisfy the
requirements of Rule 60(b), and therefore his second motion for reconsideration must be denied.
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ORDER

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Accordingly, the Court ORDERS Petitioner’s second motion for reconsideration (Doc. 14), is
DENIED.

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IT IS SO ORDERED.
Dated:

July 25, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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