Lopez v. Ducart

Filing 37

ORDER Denying 33 Motion for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 4/6/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FELIX LOPEZ,

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No. 1:15-cv-00940-LJO-JLT (HC)
Petitioner,

v.

ORDER DENYING MOTION FOR
RECONSIDERATION

CLARK E. DUCART,
[Docket No. 33]
Respondent.

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

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On February 28, 2017, the Court adopted the Findings and Recommendation of the

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Magistrate Judge and denied the petition on the merits. In addition, the Court declined to issue a

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certificate of appealability. On March 29, 2017, Petitioner filed the instant motion for

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reconsideration of the order declining to issue a certificate of appealability. (Doc. No. 33.)

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

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”
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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any

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event “not more than one year 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

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

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

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reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825

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F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To

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succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to

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reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp.

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656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir.

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1987).

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Here, petitioner fails to meet the requirements for granting a motion for reconsideration:

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

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shown the existence of either newly discovered evidence or fraud; he has not established that the

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judgment is either void or satisfied; and, finally, petitioner has not presented any other reasons

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justifying relief from judgment. Moreover, pursuant to the Court’s Local Rules, petitioner has not

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

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shown upon such prior motion, or what other grounds exist for the motion.” Local Rule 230(j).

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

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

April 6, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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