Tierney v. Abercrombie

Filing 148

ORDER DENYING MOTION FOR RECONSIDERATION 147 . Signed by JUDGE LESLIE E. KOBAYASHI on 3/21/2013. (afc)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,
Petitioner,
vs.
NEIL ABERCROMBIE, et al.,
Respondents.
____________________________

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NO. 1:11-cv-00246 LEK/RLP
ORDER DENYING MOTION FOR
RECONSIDERATION

ORDER DENYING MOTION RECONSIDERATION
On August 5, 2011, Magistrate Judge Richard Puglisi
issued a Findings and Recommendation (“F&R”) to deny this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See F&R, ECF No. 33.

On September 30, 2011, this court adopted

the F&R over Petitioner’s objections.

Order, ECF No. 42.

On

April 11, 2012, the Ninth Circuit Court of Appeals vacated and
remanded the case for consideration of Petitioner’s pending
motions for reconsideration.

ECF No. 82.

On May 9, 2012, this

court denied Petitioner’s motions for reconsideration.
ECF No. 90.

Order,

Thereafter, this court denied two subsequent motions

for reconsideration.
May 17, 2012.

Order, ECF No. 98.

Judgment entered on

ECF No. 99.

On May 22, 2012, the court denied Petitioner a
certificate of appealability.

ECF No. 100.

filed a fifth motion for reconsideration.

Petitioner promptly

ECF No. 101.

court denied that motion on August 29, 2012.

The

ECF No. 133.

Throughout these proceedings Petitioner filed numerous other

motions for reconsideration, objections to magistrate orders, and
interlocutory appeals.

See e.g., ECF Nos. 106, 109, 111, 114,

118, 119, 125, 126, 129, 134, 136, 139, 140.

All have been

considered and denied.
On December 18, 2012, the Ninth Circuit denied
Petitioner’s request for a certificate of appealability.
144.

ECF No.

On January 23, 2013, the Ninth Circuit denied Petitioner’s

request to transfer his motions for reconsideration in this court
to the appellate court and construe them as a second or
successive petition.

ECF No. 145.

On February 27, 2013, the

Ninth Circuit denied Petitioner’s request to file a second or
successive petition.

ECF No. 146.

Petitioner now moves for reconsideration based on the
Hawaii state courts denial of a state petition for relief on his
claims.

A successful motion for reconsideration must demonstrate

some reason the court should reconsider its prior decision and
set forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision.
F. Supp. 2d 1271, 1274 (D. Haw. 2006).

White v. Sabatino, 424

Three grounds justify

reconsideration: (1) an intervening change in controlling law;
(2) the availability of new evidence; and (3) the need to correct
clear error or prevent manifest injustice.

Id. (citing Mustafa

v. Clark County Sch. Dist., 157 F.3d 1169, 1178-79 (9th Cir.
1998)).

“[A] motion for reconsideration should not be granted,

absent highly unusual circumstances.”
2

Carroll v. Nakatani, 342

F.3d 934, 945 (9th Cir. 2003) (citation omitted).
Petitioner’s state court case does not constitute newly
discovered evidence, an intervening change in controlling law, or
manifest error.

Moreover, in light of the Ninth Circuit’s denial

of a certificate of appealability or permission to file a second
or successive petition, Petitioner’s Motion for Reconsideration
is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 21, 2013.

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

Tierney v. Abercrombie, et al., 1:11-cv-00246 LEK/RLP; Order Denying Motion for
Reconsideration; G:\docs\prose attys\Recon\DMP\2013\Tierney 11-246 lek (habeas).wpd

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