Worsley v. Gipson

Filing 12

ORDER Denying 11 Petitioner's Motion for Reconsideration, signed by Magistrate Judge Jennifer L. Thurston on 6/18/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD HAYDN WORSLEY,

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Petitioner,

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v.
CONNIE GIPSON, Warden,

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Respondent.

) Case No.: 1:14-cv-01323-JLT
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) ORDER DENYING PETITIONER’S MOTION
) FOR RECONSIDERATION (Doc. 11)
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On August 28, 2014, the Court issued an order to show cause why the petition should not be

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dismissed for violation of the one-year limitation period for federal habeas petitions. (Doc. 4).

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Petitioner filed his response, contending, variously, that the Court should liberally construe his

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petition, that he is untrained in the law, and that he had difficulty enlisting the aid of a “jailhouse

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lawyer.” (Doc. 6). The Court dismissed the petition because it was untimely by seven years. (Doc.

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7).

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Petitioner sought reconsideration but relied upon the same arguments he made in his response

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to the order to show cause but argued also that releasing Petitioner would be fiscally cheaper for the

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State of California than continuing to incarcerate him. (Doc. 9). The Court denied the motion for

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reconsideration. (Doc. 10).

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On June 12, 2015, Petitioner filed the instant motion that purports to object to the denial of the

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previous motion for reconsideration. (Doc. 11). Accordingly, it will be construed as a second motion
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for reconsideration. In the motion, Petitioner argues that he is actually innocent of his 2004

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convictions by a jury, which include three counts of lewd and lascivious conduct on children under the

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age of fourteen, and four other sex offenses, enhanced by prior convictions under California’s Three

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Strikes law.1 Petitioner makes various arguments about innocence, including lack of sufficient

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evidence and failure to establish that the pictures were taken by Petitioner or that Petitioner had

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knowledge of them. Petitioner makes no argument whatever regarding the timeliness of the petition,

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which was the basis for dismissal.
DISCUSSION

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district

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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.
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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Here, Petitioner failed to the requirements for granting a motion for reconsideration: He has not

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shown “mistake, inadvertence, surprise, or excusable neglect;” he has certainly not shown the existence

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of either newly discovered evidence or fraud; he has not established that the judgment is either void or

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These facts are related in the May 26, 2006 opinion of the California Court of Appeal, Fifth Appellate District, case no.
F048376, which Petitioner references in his petition.

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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).
Indeed, Petitioner makes no reference whatever to the issue of timeliness, which was the

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Court’s reason for dismissing the petition. Rather, Petitioner makes vague and unsupported

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contentions that he is “actually innocent” and that the prosecution failed to prove the charges by

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sufficient evidence. Although “actual innocence” is recognized as an exception that would permit the

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Court to consider an untimely petition, McQuiggin v. Perkins, 569 U.S.___, 2013 WL 2300806

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(2013), in this case, apart from generalized observations that Petitioner was on vacation and unnamed

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persons could have had access to his computer and uploaded the illegal photographs, Petitioner

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provides no credible evidence of “actual innocence.” While such vague arguments might properly be

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made in a closing argument in a jury trial, they fall far short of establishing entitlement to

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reconsideration.
In McQuiggin, the Supreme Court noted that cases of actual innocence were “rare” because it

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was so demanding: “[A] petitioner does not meet the threshold requirement unless he persuades the

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district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find

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him guilty beyond a reasonable doubt.” McQuiggin, at *3. Petitioner’s argument that reasonable

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jurors could have found Petitioner not guilty is not at all the same as establishing that no reasonable

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juror would have found Petitioner guilty. The former is what Petitioner is attempting to establish; the

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latter is what McQuiggin requires to avoid dismissal for untimeliness.
Additionally, Petitioner contends that he has “newly discovered evidence.” However, the

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motion does not contain any newly discovered evidence; instead, Petitioner appears to rely upon the

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state of evidence presented at trial. None of the foregoing provides any legal basis for reconsideration

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of dismissal. The petition is untimely and, under federal law, must be dismissed.
In sum, Petitioner has provided no evidence or circumstances that would satisfy the

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requirements of Rule 60(b), and therefore his motion for reconsideration must be denied.

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ORDER

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Accordingly, it is HEREBY ORDERED that Petitioner’s motion for reconsideration (Doc. 11),
is DENIED.

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IT IS SO ORDERED.
Dated:

June 18, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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