Kutzer v. Campbell

Filing 41

ORDER DENYING 40 MOTION FOR RECONSIDERATION. Signed by Judge Maxine M. Chesney on February 13, 2009. (mmcsec, COURT STAFF) (Filed on 2/13/2009) (Additional attachment(s) added on 2/17/2009: # 1 proof of service) (tdm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CALVIN T. KUTZER, ) ) Petitioner, ) ) v. ) ) ROSANNE CAMPBELL, Warden, ) ) Respondent. ) ______________________________ ) No. C 05-3212 MMC (PR) ORDER DENYING MOTION FOR RECONSIDERATION (Docket No. 40)

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

On August 8, 2005, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 10, 2008, the Court denied the petition, and judgment was entered on the same day. Presently before the Court is petitioner's August 13, 2008 motion for reconsideration of the order of dismissal. Where, as here, the court's ruling has resulted in a final judgment or order, a motion for reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Rule 59(e) is inapplicable to petitioner's request, because the request was submitted after the time for filing such a motion had passed. See Fed. R. Civ. P. 59(e) (providing motion must be filed no more than ten days following entry of judgment). Rule 60(b), which does not contain an express deadline for filing, provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence could not

1 2 3 4 5 6 7 8 9 10

have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing that the grounds justifying relief are extraordinary. See Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Here, petitioner's request contains no allegation as to newly-discovered evidence, nor does it set forth any mistake, inadvertence, surprise, excusable neglect, fraud by the adverse party, or voiding of the judgment; petitioner offers no other reason justifying relief. Accordingly, the motion for reconsideration is hereby DENIED. This order terminates Docket No. 40. IT IS SO ORDERED. DATED: February 13, 2009 _________________________ MAXINE M. CHESNEY United States District Judge

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2