Jones v. The People of the State of California

Filing 24

ORDER DISMISSING as MOOT 22 Motion for Extension of Time ; ORDER DENYING 23 Motion for Reconsideration and Evidentiary Hearing, signed by Magistrate Judge Jeremy D. Peterson on 12/24/2019. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALVIN BERNARD JONES,

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Petitioner,

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v.
J. GASTELO,

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ORDER DISMISSING PETITIONER’S
MOTION FOR EXTENSION OF TIME AS
MOOT
ECF No. 22

Respondent.

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Case No. 1:18-cv-00493-JDP

ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION
ECF No. 23

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Petitioner Alvin Bernard Jones, a state prisoner without counsel, filed a writ of habeas

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corpus under 28 U.S.C. § 2254. ECF No. 1. Both parties consented to the jurisdiction of a

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magistrate judge. ECF No. 6, 13. On June 5, 2019, the petition was denied on the merits and the

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case was closed. ECF No. 20, 21. On June 19, 2019, petitioner moved for a 60-day extension of

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time to file objections to this court’s denial of his petition. ECF No. 22. On July 12, 2019,

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petitioner filed objections to this court’s denial of his petition and requested an evidentiary

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hearing. ECF No. 23. Because petitioner filed objections less than a month after he requested an

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extension of time to file objections, I dismiss petitioner’s motion for extension of time as moot. I

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construe petitioner’s objections as a motion for reconsideration and deny that motion on the

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merits.

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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 the following grounds: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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

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judgment has been satisfied . . . or (6) any other reason justifying relief from the operation of the

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judgment.” Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable

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time. Id. Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party

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

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not shown upon such prior motion, or what other grounds exist for the motion. To succeed on a

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motion for reconsideration, a party must set forth facts or law of a strongly convincing nature to

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induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of

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Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff’d in part and rev’d in part on other

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grounds, 828 F.2d 514 (9th Cir. 1987).

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In support of his motion for reconsideration, petitioner has submitted an exact photocopy

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of the brief he submitted in support of his traverse. ECF No. 19. This brief appears to be

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petitioner’s appellate brief filed in the California Court of Appeal. This brief presents the same

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four arguments made in his habeas petition, ECF No. 1, which were the same four arguments

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denied on the merits by this court, ECF No. 20. Petitioner has not presented any of the arguments

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required for a motion for reconsideration, such as mistake, inadvertence, surprise, excusable

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neglect, newly discovered evidence or fraud. Petitioner has not claimed that the judgment is void

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or has been satisfied. Petitioner has not presented any other reason to justify relief under Rule

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60(b). Therefore, the motion for reconsideration is denied.

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Petitioner requested an evidentiary hearing as part of his motion for reconsideration. A

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state prisoner seeking an evidentiary hearing must show that he “was not at fault in failing to

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develop that evidence in state court, or (if he was at fault) if the conditions prescribed by

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§ 2254(e)(2) were met.” Holland v. Jackson, 542 U.S. 649, 652-53 (2004). Under Section

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2254(e)(2), the petitioner must show either a new, retroactive rule of constitutional law that was

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unavailable to him or a fact that he could not have discovered through the exercise of due

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diligence. 28 U.S.C. § 2254(e)(2)(A)(ii). When the petitioner fails to carry this burden, the court
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may not hold an evidentiary hearing. Id. § 2254(e)(2). Petitioner made no arguments in support

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of his motion for an evidentiary hearing. Therefore, his motion is denied.

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Order

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1. Petitioner’s motion for extension of time is dismissed as moot. ECF No. 22.

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2. Petitioner’s motion for reconsideration and evidentiary hearing is denied. ECF No. 23.

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IT IS SO ORDERED.

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Dated:
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December 24, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 206.

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