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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JERRY BROWN,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-02691-PJH
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
RAYMOND MADDEN,

Re: Dkt. No. 35

Defendant.

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Petitioner, a pro se state prisoner, brought a habeas petition under 28 U.S.C. §

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2254. The court previously granted respondent’s motion to dismiss and dismissed four of

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the seven claims in the petition as procedurally defaulted. Docket No. 34. The petition

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continues with three claims. Petitioner has filed a motion for reconsideration of the

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dismissed claims.

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Where the court's ruling has not resulted in a final judgment or order,

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reconsideration of the ruling may be sought under Rule 54(b) of the Federal Rules of Civil

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Procedure, which provides that any order which does not terminate the action is subject

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to revision at any time before the entry of judgment. See Fed. R. Civ. P. 54(b).

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“Reconsideration is appropriate if the district court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993).

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The claims were dismissed as procedurally defaulted because the California

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Supreme Court denied the claims as untimely and relied on a state law ground that was

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independent of federal law and adequate to support the judgment. Petitioner set forth the

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cause and prejudice standard in his opposition but presented no specific arguments

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showing that he had cause to default his claims. The court has reviewed petitioner’s

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motion for reconsideration, but he has still not presented sufficient arguments to

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demonstrate cause and prejudice. While petitioner may have delayed presenting all of

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his claims in this federal habeas petition, he does not discuss why he was delayed

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presenting his claims in state court. Nor has he shown that he will be prejudiced. The

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motion for reconsideration (Docket No. 35) is DENIED. Petitioner may file a traverse to

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the answer by October 23, 2019.

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IT IS SO ORDERED.
Dated: October 3, 2019

United States District Court
Northern District of California

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/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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