Banh v. McEwen
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)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
United States District Court
For the Northern District of California
No. C 10-5915 JSW (PR)
ORDER DENYING MOTION FOR
L.S. McEWAN, Warden,
This closed federal habeas corpus action was filed pursuant to 28 U.S.C. § 2254 by a
pro se state prisoner. The habeas petition was denied and judgment entered in favor of
respondent on December 14, 2011. Petitioner has filed a motion for reconsideration.
(Docket No. 13.)
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. “Under Rule 59(e), it is appropriate to alter or amend a judgment if ‘(1) the
district court is presented with newly discovered evidence, (2) the district court committed
clear error or made an initial decision that was manifestly unjust, or (3) there is an
intervening change in controlling law.’” United Nat. Ins. Co. v. Spectrum Worldwide, Inc.,
555 F.3d 772, 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734,
740 (9th Cir. 2001)). Here, petitioner’s request contains no showing of newly-discovered
evidence, or that the Court committed clear error or made an initial decision that was
manifestly unjust, or that there was an intervening change in controlling law.
Rule 60(b) 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 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 showing of 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 is
IT IS SO ORDERED.
DATED: February 3, 2012
JEFFREY S. WHITE
United States District Judge
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