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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 DAN BANH, United States District Court For the Northern District of California 13 14 15 16 No. C 10-5915 JSW (PR) Petitioner, ORDER DENYING MOTION FOR RECONSIDERATION v. L.S. McEWAN, Warden, Respondent. / 17 18 19 This closed federal habeas corpus action was filed pursuant to 28 U.S.C. § 2254 by a 20 pro se state prisoner. The habeas petition was denied and judgment entered in favor of 21 respondent on December 14, 2011. Petitioner has filed a motion for reconsideration. 22 (Docket No. 13.) 23 Where, as here, the Court’s ruling has resulted in a final judgment or order, a motion 24 for reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of 25 Civil Procedure. “Under Rule 59(e), it is appropriate to alter or amend a judgment if ‘(1) the 26 district court is presented with newly discovered evidence, (2) the district court committed 27 clear error or made an initial decision that was manifestly unjust, or (3) there is an 28 1 intervening change in controlling law.’” United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 2 555 F.3d 772, 779 (9th Cir. 2009) (quoting Zimmerman v. City of Oakland, 255 F.3d 734, 3 740 (9th Cir. 2001)). Here, petitioner’s request contains no showing of newly-discovered 4 evidence, or that the Court committed clear error or made an initial decision that was 5 manifestly unjust, or that there was an intervening change in controlling law. 6 Rule 60(b) provides for reconsideration where one or more of the following is shown: 7 (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that 8 by due diligence could not have been discovered before the court’s decision; (3) fraud by the 9 adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other 10 reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 11 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a 12 showing that the grounds justifying relief are extraordinary. See Twentieth Century-Fox 13 Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Here, petitioner’s request 14 contains no showing of newly-discovered evidence, nor does it set forth any mistake, 15 inadvertence, surprise, excusable neglect, fraud by the adverse party, or voiding of the 16 judgment; petitioner offers no other reason justifying relief. Accordingly, the motion is 17 hereby DENIED. 18 19 IT IS SO ORDERED. DATED: February 3, 2012 JEFFREY S. WHITE United States District Judge 20 21 22 23 24 25 26 27 28 2

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