Montgomery v. Perry

Filing 59

ORDER signed by Chief District Judge Kimberly J. Mueller on 4/5/21 DENYING 58 petitioner's motion for reconsideration construed as a request for relief from judgment. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Aaron Montgomery,

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No. 2:15-cv-01220-KJM-AC

Petitioner,
v.

ORDER

S. Perry
Respondent.

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Petitioner, proceeding pro se, filed a petition for writ of habeas corpus in June of 2015.

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On March 17, 2021, this action was dismissed without prejudice for failure to prosecute, and

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judgment was entered. Order, ECF No. 56; J., ECF No. 57.

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Petitioner now moves for reconsideration. Mot. for Reconsideration, ECF No. 58. The

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court construes this pleading as a request for relief from judgment pursuant to Federal Rule of

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Civil Procedure 60(b). Under Rule 60(b), the court may relieve a party or its legal representative

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from a final judgment, order or proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
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(4) the judgment is void;

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(5) the judgment has been satisfied, released, or discharged; it is based on an earlier

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judgment that has been reversed or vacated; or applying it prospectively is no

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longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). After reviewing the record in light of petitioner’s most recent filing, the

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court finds petitioner has not made the showing required for relief under any provision of Federal

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Rule 60(b). In particular, petitioner has not shown why the matter should not have been

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dismissed due to his failure to prosecute, by demonstrating excusable neglect, newly discovered

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evidence or fraud.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for reconsideration,

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construed as a request for relief from judgment, is denied.

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DATED: April 5, 2021.

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