Brown v. Madden

Filing 37

ORDER DENYING MOTION FOR RECONSIDERATION by Judge Phyllis J. Hamilton denying 35 Motion for Reconsideration. ***The deputy clerk hereby certifies that on 10/3/2019 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing specifically sent to Jerry Brown.*** (kcS, COURT STAFF) (Filed on 10/3/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JERRY BROWN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-02691-PJH ORDER DENYING MOTION FOR RECONSIDERATION v. RAYMOND MADDEN, Re: Dkt. No. 35 Defendant. 12 13 Petitioner, a pro se state prisoner, brought a habeas petition under 28 U.S.C. § 14 2254. The court previously granted respondent’s motion to dismiss and dismissed four of 15 the seven claims in the petition as procedurally defaulted. Docket No. 34. The petition 16 continues with three claims. Petitioner has filed a motion for reconsideration of the 17 dismissed claims. 18 Where the court's ruling has not resulted in a final judgment or order, 19 reconsideration of the ruling may be sought under Rule 54(b) of the Federal Rules of Civil 20 Procedure, which provides that any order which does not terminate the action is subject 21 to revision at any time before the entry of judgment. See Fed. R. Civ. P. 54(b). 22 “Reconsideration is appropriate if the district court (1) is presented with newly discovered 23 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if 24 there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 25 F.3d 1255, 1263 (9th Cir. 1993). 26 The claims were dismissed as procedurally defaulted because the California 27 Supreme Court denied the claims as untimely and relied on a state law ground that was 28 independent of federal law and adequate to support the judgment. Petitioner set forth the 1 cause and prejudice standard in his opposition but presented no specific arguments 2 showing that he had cause to default his claims. The court has reviewed petitioner’s 3 motion for reconsideration, but he has still not presented sufficient arguments to 4 demonstrate cause and prejudice. While petitioner may have delayed presenting all of 5 his claims in this federal habeas petition, he does not discuss why he was delayed 6 presenting his claims in state court. Nor has he shown that he will be prejudiced. The 7 motion for reconsideration (Docket No. 35) is DENIED. Petitioner may file a traverse to 8 the answer by October 23, 2019. 9 10 IT IS SO ORDERED. Dated: October 3, 2019 United States District Court Northern District of California 11 12 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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