Tierney v. Abercrombie

Filing 138

ORDER DENYING 136 MOTION UNDER RULE 60(b): "Petitioner's Motion for Reconsideration is DENIED. The Clerk shall docket any further motions for reconsideration in this matter as notices of appeal and process accordingly. To the extent th at a certificate of appealability is required, it is DENIED." Signed by JUDGE LESLIE E. KOBAYASHI on September 27, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

MICHAEL C. TIERNEY,
#A0201434,

)
)
)
Petitioner,
)
)
vs.
)
)
NEIL ABERCROMBIE, et al.,
)
)
)
Respondents.
_____________________________ )

NO. 1:11-cv-000246 LEK-RLP
ORDER DENYING MOTION UNDER
RULE 60(b)

ORDER DENYING MOTION UNDER RULE 60(b)
Before the court is Petitioner’s motion for
reconsideration of the denial of his fifth motion for
reconsideration of the September 30, 2011, Order adopting the
Findings and Recommendation (F&R) to deny his Amended Petition
for writ of habeas corpus.

ECF #136.

Petitioner brings this

motion pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure.1
I. LEGAL STANDARD
Rule 60(b) permits reconsideration based on: (1)
mistake, inadvertence, surprise, or excusable neglect; (2)
newly-discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59;

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Petitioner has filed numerous objections, motions for reconsideration,
and appeals in this action and it is somewhat confusing determining for which
orders he seeks reconsideration. See e.g., ECF #17, #25, #35, #52, #57, #59,
#67, #72, #75, #81, #91, #96, #101, #106, #111, #115, #118 #119, #124, #125,
#126, #130, #134, #136.

(3) fraud, misrepresentation, or misconduct by an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of
the judgment.

See Fed. R. Civ. P. 60(b)(1)-(b)(6).

Rule 60

reconsideration is generally appropriate in three instances: (1)
when there has been an intervening change of controlling law; (2)
new evidence has come to light; or (3) when necessary to correct
a clear error or prevent manifest injustice. School District No.
1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
II.

DISCUSSION

Plaintiff complains that the court should have referred
his previous motion for reconsideration to the Ninth Circuit
Court of Appeals, because the court found that Petitioner’s
arguments for reconsideration were simply arguments in support of
a second or successive habeas petition.

Plaintiff also rehashes

the arguments he presented in his earlier motions for
reconsideration of the decision denying his habeas petition.
First, this court is under no obligation to refer a
petitioner’s second or successive petition for writ of habeas
corpus to the appellate court.

Rather, it is the petitioner’s

responsibility “to move in the appropriate court of appeals for

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an order authorizing the district court to consider the
application.”

28 U.S.C. § 2244(b)(3)(A).

Moreover, the court

did not construe Petitioner’s motion for reconsideration as a
second or successive petition for writ of habeas corpus, it
rejected the motion because it presented claims in support of
such a petition.
Second, Petitioner provides no intervening change in
controlling law, new evidence, or a sufficient argument showing
the need to correct clear error or prevent manifest injustice
relating to this court’s denial of his previous motion for
reconsideration, or relating to the Order adopting the F&R to
deny the petition.

Plaintiff’s Motion Under Rule 60(b), ECF

#136, is DENIED.
Finally, the court has the inherent power to control
its docket and the responsibility to manage its cases to further
the ends of justice.

See Ready Transp., Inc., v. AAR Mfg., Inc.,

627 F.3d 402, 404-05 (9th Cir. 2010).

That power includes, inter

alia, the right strike items from the docket, see, e.g., Lazy Y
Ranch Ltd. v. Behrens, 546 F.3d 580, 586-87, 588 (9th Cir. 2008);
strike deposition corrections and declarations, see Bros. Lumber
Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224-26 (9th Cir.
2005); and to strike irrelevant briefs and pleadings, as
sanctions for litigation conduct, see Carrigan v. Cal. State
Legislature, 263 F.2d 560, 564 (9th Cir. 1959).

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“Every paper

filed with the Clerk of [] Court, no matter how repetitious or
frivolous, requires some portion of the institution’s limited
resources.

A part of the Court’s responsibility is to see that

these resources are allocated in a way that promotes the
interests of justice.”

Day v. Day, 510 U.S. 1, 2 (1993), citing

In re McDonald, 489 U.S. 180, 184 (1989) (per curiam).

“The goal

of fairly dispensing justice . . . is compromised when the Court
is forced to devote its limited resources to the processing of
repetitious and frivolous requests.”

Whitaker v. Superior Court

of San Francisco, 514 U.S. 208, 210 (1995) (citation omitted).
Petitioner has shown that he has the ability to file a
notice of appeal when it suits his purposes.

His serial filing

of frivolous motions for reconsideration appear to be an effort
to hinder the just disposition of this case.

In an effort to

control this litigation and ensure that justice is served to both
parties, the Clerk of Court is DIRECTED to docket any further
motions for reconsideration from Petitioner as notices of appeal,
and to process them accordingly.
III.

CONCLUSION

Petitioner’s Motion for Reconsideration is DENIED.

The

Clerk shall docket any further motions for reconsideration in
this matter as notices of appeal and process accordingly.

To the

extent that a certificate of appealability is required, it is
DENIED.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 27, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Tierney v. Abercrombie, 1:11-cv-00246 LEK-RLP; ORDER DENYING MOTION UNDER RULE 60(b);
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