Downs, IV v. Beard

Filing 18

ORDER signed by Magistrate Judge Deborah Barnes on 12/7/2016 DENYING petitioner's 16 "objections"/motion to reconsider and motions to stay and recuse. Petitioner shall, within 21 days, file his amended petition as previously-ordered by this court on 5/14/2016. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

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No. 2:15-cv-00724 DB

Petitioner,
v.

ORDER

JEFFREY BEARD,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
On April 14, 2016, the court granted petitioner’s motion for extension of time to file an

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amended petition. (ECF No. 13.) The court ordered petitioner to file his amended petition by

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May 14, 2016. (Id.) As of the date of this order, petitioner has not filed an amended petition.

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On May 20, 2016, petitioner filed a motion to appoint counsel. (ECF No. 14.) The

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magistrate judge on the case at that time, Magistrate Judge Kendall J. Newman, entered an order

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denying the motion to appoint counsel. (ECF No. 15.) Petitioner responded to Judge Newman’s

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order with a filing labeled as “Objections to Magistrate Judge Findings,” which also appears to

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include motions to stay and to issue an order of recusal. (ECF No. 16.)

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Petitioner’s “objections” shall be interpreted as a motion for reconsideration because
Magistrate Judge Newman’s ruling was an order, not findings and recommendations.
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The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d

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1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.

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1992). Motions for reconsideration are disfavored, however, and are not the place for parties to

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make new arguments not raised in their original briefs. Northwest Acceptance Corp. v.

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Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir. 1988). Nor is reconsideration to be used to

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ask the Court to rethink what it has already thought. United States v. Rezzonico, 32 F. Supp. 2d

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1112, 1116 (D. Ariz. 1998). “A party seeking reconsideration must show more than a

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disagreement with the Court's decision, and recapitulation of the cases and arguments considered

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by the court before rendering its original decision fails to carry the moving party's burden.” U.S.

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v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D.Cal.2001).

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Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick

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Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th

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Cir. 1983), en banc. To succeed, a party must set forth facts or law of a strongly convincing

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

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Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on

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other grounds 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule

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78-230(j) requires a party to show the “new or different facts or circumstances [] claimed to exist

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which did not exist or were not shown upon such prior motion, or what other grounds exist for the

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motion[.]” (emphasis supplied).

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Petitioner’s motion does not meet the high burden necessary to succeed on a motion for

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reconsideration. Petitioner’s motion for reconsideration retreads the arguments already made in

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the original motion -- and already rejected by the court. Thus, petitioner is merely showing

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“disagreement with the Court's decision, and recapitulation of the cases and arguments considered

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by the court before rendering its original decision[.]” Westlands Water Dist., 134 F. Supp. 2d at

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1131.
Accordingly, petitioner’s “objections”/ motion for reconsideration (ECF No. 16) should

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be denied.

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In addition to objecting to Magistrate Judge Newman’s order denying his motion to

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appoint counsel, petitioner also seemingly seeks a stay and recusal. However, the substance of

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petitioner’s motion is unclear and the court cannot determine what petitioner seeks to stay and

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who petitioner requests to recuse him or herself. (See ECF No. 16 at 2-16.) It appears that

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petitioner’s motions to stay and recuse may actually be the content for an amended habeas

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petition. However, this is uncertain. Accordingly, the court will, for now, deny the motions to

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stay and recuse without prejudice.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s “objections”/motion to
reconsider and motions to stay and recuse (ECF No. 16) are DENIED. Additionally, petitioner

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shall, within twenty-one (21) days of this order file his amended petition as previously-ordered by

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this court on May 14, 2016. Petitioner is warned that failure to comply with this deadline may

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result in this court recommending that this action be dismissed for failure to prosecute.

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Dated: December 7, 2016

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / down1425.mtr

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