Brown v. Felker

Filing 61

ORDER signed by Judge Frank C. Damrell, Jr on 1/8/09 ORDERING that petitioner's motion for relief from judgment is DENIED. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. T. FELKER, Respondent. / Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On August 22, 2008, this court granted respondent's motion to dismiss the petition as time-barred and entered judgment. Petitioner filed a timely notice of appeal on September 12, 2008. On October 3, 2008, petitioner filed a motion asking the court "to fully reconsider," which the court interprets as a motion for relief from judgment under Fed. R. Civ. P. 60(b). Because the pendency of the appeal in this case has deprived this court of jurisdiction over petitioner's motion, he must first determine whether this court is willing to consider his motion to vacate the judgment and then seek remand from the Court of Appeals. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). He has not sought permission for this request for reconsideration. 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIE E. BROWN, JR., Petitioner, No. CIV S-06-1086 FCD KJM P

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 is denied.

Moreover, even if petitioner had made the request, the court would not be willing to entertain this motion. Petitioner gives no reason recognized by the Federal Rules of Civil Procedure as the proper basis for this motion, but rather seeks to have the court revisit its rulings. However, a motion to reconsider is not a vehicle permitting the unsuccessful party to "rehash" arguments previously presented, or to present "contentions which might have been raised prior to the challenged judgment." Costello v. United States, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991) IT IS THEREFORE ORDERED that petitioner's motion for relief from judgment

DATED: January 8, 2009.

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

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