Langston v. Swarthout

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 5/7/13 denying 9 Motion for Reconsideration. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER SHANE LANGSTON,

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No. 2:13-cv-0197 KJN1 P

Petitioner,
vs.
GARY SWARTHOUT,

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Respondent.

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ORDER
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Petitioner seeks reconsideration of this court’s order and judgment entered March

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22, 2013, wherein the court construed the petition for writ of habeas corpus filed herein as a

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motion to amend the petition pending in Langston v. Swarthout, Case No. 2:12-cv-01633 JFM.

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(See Dkt. Nos. 7, 8, herein.) Petitioner seeks reconsideration2 on the ground that the court’s

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construction of the instant petition compromises his action in Case No. 2:12-cv-01633 JFM.

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Petitioner asserts that respondent defaulted in the first-filed action, thus entitling petitioner to the

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Petitioner consented to the jurisdiction of the undersigned magistrate judge for all
purposes. (Dkt. No. 5.) See 28 U.S.C. § 636(c); Local Rule 305(a).

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Rule 60, Federal Rules of Civil Procedure, authorizes, inter alia, relief from a final
order for “any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
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requested relief,3 and that construing the instant petition as a motion to amend petitioner’s first-

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filed action “gives the respondent a second bite at the apple . . .[to] use the new amendment as an

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loop hole opportunity, to respond (sic).” (Dkt. No. 9 at 1.)

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The undersigned is without authority to reopen the instant case. The petition filed

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in the instant case must be construed as a motion to amend petitioner’s first-filed petition. See

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Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Petitioner’s concerns regarding the merits of

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Case No. 2:12-cv-01633 JFM, must be raised in that action.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s request for
reconsideration (Dkt. No. 9), is denied.
DATED: May 7, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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lang0197.recon.den

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The court notes, however, that petitioner’s request for entry of default in Case No. 2:12cv-01633 JFM, was declined by the court; petitioner has filed a motion for reconsideration of that
order, which remains pending.
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