Wheelock v. Kernan

Filing 137

ORDER by Judge Hamilton denying 136 Motion for Reconsideration (pjhlc3, COURT STAFF) (Filed on 3/9/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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THOMAS FRANKLIN WHEELOCK,
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Petitioner,

No. C 05-3878 PJH

v.
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For the Northern District of California

United States District Court

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ORDER DENYING MOTION FOR
RULE 59 RELIEF

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SCOTT M. KERNAN, Warden,

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Respondent.
_______________________________/

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On February 2, 2012, this court denied petitioner Thomas Wheelock’s (“Wheelock”)
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Wheelock now moves the
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court for reconsideration of its order under Federal Rule of Civil Procedure 59. Having
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considered Wheelock’s motion and the relevant authorities, the court DENIES the motion.
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A district court has considerable discretion when considering a motion to alter and/or
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amend a judgment under Rule 59(e). McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th
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Cir. 1999). A Rule 59(e) motion should not be granted, absent highly unusual
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circumstances, unless: 1) the motion is necessary to correct manifest errors of law or fact
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upon which a judgment is based; 2) the moving party presents newly discovered or
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previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or
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4) there is an intervening change in the controlling law. Turner v. Burlington Northern
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Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003); see also McDowell, 197 F.3d at
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1255 (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)).
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Wheelock moves for reconsideration as to three issues: (1) the trial court’s
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dismissal of a juror during deliberations violated his constitutional right to due process and

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to a trial by a fair and impartial jury and also violated his equal protection rights;

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(2) the prosecution’s failure to obtain and preserve videotape evidence violated his due

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process rights; and (3) the Alameda County grand jury and forepersons selection

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procedures violated his due process and his equal protection rights.

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As for all three issues, Wheelock offers no new evidence, nor does he demonstrate

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any error in law or fact upon which the judgment was based. Instead, he simply reasserts

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the very arguments that this court already considered and rejected in his original petition.

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The court has thoroughly reviewed, considered, and addressed the repetitive arguments,

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and finds no reason to reconsider its February 2, 2012 decision.
CONCLUSION

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For the Northern District of California

United States District Court

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Accordingly, Wheelock’s Rule 59 motion is DENIED.

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IT IS SO ORDERED.

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Dated: March 9, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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