Bailey v. Diaz

Filing 77

ORDER by Judge Charles R. Breyer denying 71 Motion for Reconsideration (Attachments: # 1 Certificate/Proof of Service) (beS, COURT STAFF) (Filed on 11/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JASPER BAILEY, G-60744,
Petitioner,

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vs.
RALPH DIAZ, Acting Warden,
Respondent.

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No. C 12-1414 CRB (PR)
ORDER DENYING MOTION
FOR RECONSIDERATION
(Docket #71)

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This habeas petition was denied on the merits on October 8, 2013, and a

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certificate of appealability was denied. Petitioner has filed a motion for

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reconsideration that the court will construe as a motion to alter or amend the

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judgment pursuant to Fed. R. Civ. P. 59(e).

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A motion to alter or amend judgment under Rule 59 must be made no later

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than twenty-eight days after entry of judgment. See Fed. R. Civ. P. 59(e)

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(effective Dec. 1, 2009). A motion for reconsideration under Rule 59(e) "'should

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not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the law."' McDowell v. Calderon, 197 F.3d 1253, 1255

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(9th Cir. 1999) (citation omitted) (en banc).

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Evidence is not newly discovered for purposes of a Rule 59(e) motion if it

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was available prior to the district court's ruling. See Ybarra v. McDaniel, 656

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F.3d 984, 998 (9th Cir. 2011) (affirming district court's denial of habeas

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petitioner's motion for reconsideration where petitioner's evidence of exhaustion

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was not "newly discovered" because petitioner was aware of such evidence

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almost one year prior to the district court's denial of the petition).

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A district court does not commit clear error warranting reconsideration

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when the question before it is a debatable one. See McDowell, 197 F.3d at 1256

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(district court did not abuse its discretion in denying reconsideration where

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question whether it could enter protective order in habeas action limiting

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Attorney General's use of documents from trial counsel's file was debatable).

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Courts construing Rule 59(e), have noted that a motion to reconsider is not

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a vehicle permitting the unsuccessful party to "rehash" arguments previously

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presented, or to present "contentions which might have been raised prior to the

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challenged judgment." Costello v. United States, 765 F.Supp. 1003, 1009 (C.D.

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Cal. 1991). These holdings "reflect[] district courts' concerns for preserving

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dwindling resources and promoting judicial efficiency." Id.

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In his motion, petitioner generally repeats the same claims and allegations

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from his petition that the court analyzed in detail in denying the petition. To the

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extent petitioner repeats his allegations that witnesses lied at trial, this is

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insufficient to warrant amending the judgment. Nor can the court reverse its

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judgment so petitioner can attempt to obtain additional evidence as petitioner had

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much time during trial and his appeals to obtain declarations from several

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witnesses. He has still failed to describe the substance of what these witnesses

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would testify to. Petitioner has failed to demonstrate any reason to justify

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altering or amending the judgment and the motion is denied.

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CONCLUSION
Petitioner’s motion fo reconsideration (Docket # 71) is DENIED.
SO ORDERED.

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DATED: Nov. 22, 2013
CHARLES R. BREYER
United States District Judge

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