Lopez v. Ducart
ORDER Denying 33 Motion for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 4/6/17. (Gonzalez, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 1:15-cv-00940-LJO-JLT (HC)
ORDER DENYING MOTION FOR
CLARK E. DUCART,
[Docket No. 33]
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
On February 28, 2017, the Court adopted the Findings and Recommendation of the
Magistrate Judge and denied the petition on the merits. In addition, the Court declined to issue a
certificate of appealability. On March 29, 2017, Petitioner filed the instant motion for
reconsideration of the order declining to issue a certificate of appealability. (Doc. No. 33.)
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 of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has
been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”
Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any
event “not more than one year 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 the “new or different facts or circumstances claimed to exist which did not exist or were not
shown upon such prior motion, or what other grounds exist for the motion.” Motions to
reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825
F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To
succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to
reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp.
656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir.
Here, petitioner fails to meet the requirements for granting a motion for reconsideration:
He has not shown “mistake, inadvertence, surprise, or excusable neglect;” he has certainly not
shown the existence of either newly discovered evidence or fraud; he has not established that the
judgment is either void or satisfied; and, finally, petitioner has not presented any other reasons
justifying relief from judgment. Moreover, pursuant to the Court’s Local Rules, petitioner has not
shown “new or different facts or circumstances claimed to exist which did not exist or were not
shown upon such prior motion, or what other grounds exist for the motion.” Local Rule 230(j).
Accordingly, it is HEREBY ORDERED that Petitioner’s motion for reconsideration (Doc.
33) is DENIED.
IT IS SO ORDERED.
/s/ Lawrence J. O’Neill _____
April 6, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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