Wise v. Walker

Filing 36

ORDER by Judge Ronald M. Whyte Denying 35 Motion for Reconsideration. (jgS, COURT STAFF) (Filed on 9/24/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LANARE WISE,
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Petitioner,
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vs.
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WARDEN JAMES WALKER,
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Respondent.
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No. C 09-0268 RMW (PR)
ORDER DENYING MOTION FOR
RECONSIDERATION

(Docket No. 35)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. After reviewing the briefs and the underlying record, the court
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concluded that petitioner was not entitled to relief based on the claims presented and denied the
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petition on August 2, 2010. (Docket No. 23.) On October 9, 2012, the United States Court of
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Appeal denied petitioner’s request for a certificate of appealability. Petitioner also filed a
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petition for certiorari and a petition for rehearing with the Unites States Supreme Court. Both
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were denied. (Docket Nos. 32 and 34.) On July 17, 2014, petitioner filed the current motion to
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set aside default judgment. (Docket No. 35.)
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The court construes petitioner’s motion as a motion for relief from judgment, pursuant to
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Federal Rule of Civil Procedure 60(b). Rule 60(b) of the Federal Rules of Civil Procedure
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provides for reconsideration where one or more of the following is shown: (1) mistake,
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inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence
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Order Denying Motion for Reconsideration
P:\PRO-SE\RMW\HC.09\Wise268denrecon.wpd

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could not have been discovered before the court’s decision; (3) fraud by the adverse party; (4)

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voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief.

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See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993).

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Although couched in broad terms, subparagraph (6) requires a showing that the grounds

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justifying relief are extraordinary. Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d

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1338, 1341 (9th Cir. 1981).

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Petitioner does not make a showing of mistake, inadvertence, surprise or excusable

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neglect. He does not set forth any newly discovered evidence, fraud, or any grounds for finding

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that the judgment is void or has been satisfied. Nor does he set forth any other reason justifying

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relief. Rule 60(b)(6) affords courts the discretion and power “to vacate judgments whenever

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such action is appropriate to accomplish justice.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th

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Cir. 2009).

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In the present motion, filed four years after this court entered judgment against petitioner,

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petitioner argues that the judgment should be set aside because he believes that the prosecutor

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presented false evidence at his trial and committed prosecutorial misconduct. Petitioner has not

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demonstrated extraordinary circumstances. Petitioner is merely rearguing the claims that he

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presented in his petition in 2010.

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Accordingly, the motion for reconsideration is DENIED. No further filings shall be
accepted in this closed case.

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This order terminates docket number 35.

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IT IS SO ORDERED.

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DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Denying Motion for Reconsideration
P:\PRO-SE\RMW\HC.09\Wise268denrecon.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

LANARE WISE,

Case Number: CV09-00268 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JAMES WALKER et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 24, 2014, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Lanare Wise T76040
C.S.P. Sacramento
C6-218
P.O. Box 290066
Represa, CA 95671-0066
Dated: September 24, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk