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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FELIX LOPEZ, 12 13 14 15 No. 1:15-cv-00940-LJO-JLT (HC) Petitioner, v. ORDER DENYING MOTION FOR RECONSIDERATION CLARK E. DUCART, [Docket No. 33] Respondent. 16 17 18 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 On February 28, 2017, the Court adopted the Findings and Recommendation of the 20 Magistrate Judge and denied the petition on the merits. In addition, the Court declined to issue a 21 certificate of appealability. On March 29, 2017, Petitioner filed the instant motion for 22 reconsideration of the order declining to issue a certificate of appealability. (Doc. No. 33.) 23 24 DISCUSSION Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 25 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 26 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 27 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 28 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 1 1 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 2 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 3 Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to 4 show the “new or different facts or circumstances claimed to exist which did not exist or were not 5 shown upon such prior motion, or what other grounds exist for the motion.” Motions to 6 reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 7 F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To 8 succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to 9 reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 10 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 11 1987). 12 Here, petitioner fails to meet the requirements for granting a motion for reconsideration: 13 He has not shown “mistake, inadvertence, surprise, or excusable neglect;” he has certainly not 14 shown the existence of either newly discovered evidence or fraud; he has not established that the 15 judgment is either void or satisfied; and, finally, petitioner has not presented any other reasons 16 justifying relief from judgment. Moreover, pursuant to the Court’s Local Rules, petitioner has not 17 shown “new or different facts or circumstances claimed to exist which did not exist or were not 18 shown upon such prior motion, or what other grounds exist for the motion.” Local Rule 230(j). 19 20 21 ORDER Accordingly, it is HEREBY ORDERED that Petitioner’s motion for reconsideration (Doc. 33) is DENIED. 22 23 24 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ April 6, 2017 UNITED STATES CHIEF DISTRICT JUDGE 25 26 27 28 2

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