Smith v. Williams et al

Filing 47

ORDER Denying 42 Motion for District Judge to Reconsider Order. Signed by Judge Gloria M. Navarro on 11/15/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIE J. SMITH, JR.,

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Petitioner,
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vs.
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BRIAN WILLIAMS, et al.,
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Respondents.
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____________________________________/

2:08-cv-1552-GMN-VCF
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
by a Nevada state prisoner.

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Petitioner has filed a motion for reconsideration. (ECF No. 42). Where a ruling has resulted

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in final judgment or order, a motion for reconsideration may be construed either as a motion to alter

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or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or as a motion for relief from

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judgment pursuant to Federal Rule 60(b). School Dist. No. 1J Multnomah County v. AC&S, Inc., 5

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F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994). Under Fed. R. Civ. P. 60(b) the

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court may relieve a party from a final judgment or order for the following reasons:

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(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(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of 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.

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Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick

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Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider,

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a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its

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prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal.

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1986), aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of

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the Federal Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be

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filed no later than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P.

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59(e) “should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an intervening change

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in the controlling law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v.

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Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999). Federal courts have determined that there are four

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grounds for granting a Rule 59(e) motion: (1) the motion is necessary to correct manifest errors of

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law or fact upon which the judgment is based; (2) the moving party presents newly discovered or

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previously unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4)

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there is an intervening change in controlling law. Turner v. Burlington Northern Santa Fe R. Co.,

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338 F.3d 1058 (9th Cir. 2003).

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In the instant case, petitioner asks this Court to review previously entered orders on the basis

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that this action was formerly assigned to the Honorable Robert C. Jones, and has been reassigned to

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the undersigned District Judge. Petitioner appears to challenge this Court’s prior order dismissing

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several grounds of the petition. (ECF No. 29). Petitioner’s motion presents arguments that were

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previously considered and rejected. (See ECF No. 29). In his motion, petitioner has not identified

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any mistake, intervening change in controlling law, or other factor that would require altering the

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orders previously entered in this case. Petitioner has not shown that manifest injustice resulted from

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the prior orders entered in this case. Petitioner also has not presented newly discovered or previously

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unavailable evidence. Petitioner has failed to make an adequate showing under either Rule 59(e) or

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Rule 60(b) to justify granting his motion for reconsideration.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 42)
is DENIED.
Dated this 15th day of November, 2011.

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Gloria M. Navarro
United States District Judge
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