Rhodes v. The Sacramento Police Department

Filing 44

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/17/2011 DENYING ptnr's 42 motion for reconsideration. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE RHODES,

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Petitioner,

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No. CIV S-10-1444 GGH P

vs.
MIKE MCDONALD, Warden,

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Respondent.

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ORDER
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On May 24, 2011, this court granted respondent’s motion to dismiss this petition

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for writ of habeas corpus for failure to exhaust state court remedies.1 On June 3, 2011, petitioner

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filed a notice of appeal, and on July 14, 2011, this court denied petitioner’s application for a

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certificate of appealability. Petitioner has moved for a certificate of appealability in the Court of

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Appeals. See Docket No. 11-16573, Docket No. 4. Petitioner now moves this court for

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reconsideration of the court’s May 24, 2011 order (Docket No. 42) and has filed a “Jurisdictional

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Statement,” (Docket No. 43) which reads that the Court of Appeals “has jurisdiction over this

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matter.”

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Both parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C.

§ 636(c).
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Federal Rule of Civil Procedure 62.1(a) provides that

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If a timely motion is made for relief that the court lacks authority to grant because
of an appeal that has been docketed and is pending, the court may:

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(1)
(2)
(3)

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defer considering the motion;
deny the motion; or
state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion presents a substantial
issue.

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Fed. R. Civ. P. 62.1(a). See also Perry v. Schwarzenegger, — F.Supp.2d —, 2011 WL 2321440

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*2 (N.D. Cal. June 14, 2011). Pursuant to Rule 62.1(a)(2), this court denies the motion to

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reconsider.

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Although motions to reconsider are directed to the sound discretion of the court,

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Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981),

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considerations of judicial economy weigh heavily in the process. Thus Local Rule 230(j)

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requires that a party seeking reconsideration of a district court’s order must brief the “new or

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different facts or circumstances [which] were not shown upon such prior motion, or what other

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grounds exist for the motion.” The rule derives from the “law of the case” doctrine which

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provides that the decisions on legal issues made in a case “should be followed unless there is

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substantially different evidence . . . new controlling authority, or the prior decision was clearly

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erroneous and would result in injustice.” Handi Investment Co. v. Mobil Oil Corp., 653 F.2d

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391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert.

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denied, 475 U.S. 1064 (1986).

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Petitioner’s motion for reconsideration does not refer to any Federal Rule as the

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basis for the relief sought, nor does he identify any new or different facts or circumstances as

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required by the Local Rule. Instead, petitioner alleges that “[t]here is no justifiable reason....to

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dismiss my Writ of Habeas Corpus” and that he “must now question the integrity of this court.”

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Petitioner’s reasons are insufficient to support the relief requested. The motion

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for reconsideration is denied. See Fed. R. Civ. P. 62.1(a)(2).

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DATED: October 17, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:rb
rhod1444.850

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