Banh v. McEwen

Filing 20

ORDER DENYING MOTION FOR RECONSIDERATION 13 . Signed by Judge Jeffrey S. White on 02/03/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 2/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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DAN BANH,

United States District Court
For the Northern District of California

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No. C 10-5915 JSW (PR)
Petitioner,

ORDER DENYING MOTION FOR
RECONSIDERATION

v.
L.S. McEWAN, Warden,
Respondent.
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This closed federal habeas corpus action was filed pursuant to 28 U.S.C. § 2254 by a

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pro se state prisoner. The habeas petition was denied and judgment entered in favor of

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respondent on December 14, 2011. Petitioner has filed a motion for reconsideration.

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(Docket No. 13.)

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Where, as here, the Court’s ruling has resulted in a final judgment or order, a motion

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for reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of

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Civil Procedure. “Under Rule 59(e), it is appropriate to alter or amend a judgment if ‘(1) the

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district court is presented with newly discovered evidence, (2) the district court committed

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clear error or made an initial decision that was manifestly unjust, or (3) there is an

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intervening change in controlling law.’” United Nat. Ins. Co. v. Spectrum Worldwide, Inc.,

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555 F.3d 772, 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734,

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740 (9th Cir. 2001)). Here, petitioner’s request contains no showing of newly-discovered

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evidence, or that the Court committed clear error or made an initial decision that was

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manifestly unjust, or that there was an intervening change in controlling law.

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Rule 60(b) provides for reconsideration where one or more of the following is shown:

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(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that

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by due diligence could not have been discovered before the court’s decision; (3) fraud by the

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adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other

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reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d

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1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a

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showing that the grounds justifying relief are extraordinary. See Twentieth Century-Fox

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Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Here, petitioner’s request

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contains no showing of newly-discovered evidence, nor does it set forth any mistake,

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inadvertence, surprise, excusable neglect, fraud by the adverse party, or voiding of the

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judgment; petitioner offers no other reason justifying relief. Accordingly, the motion is

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hereby DENIED.

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IT IS SO ORDERED.
DATED: February 3, 2012
JEFFREY S. WHITE
United States District Judge

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