Hairston v. Gillispie et al

Filing 80

ORDER that petitioners Motion for Reconsideration 77 is denied. The motion for copies of exhibits 78 is DENIED. The clerk shall inform petitioner of the cost to obtain copies of the exhibits he requests. Signed by Chief Judge Roger L. Hunt on 8/24/10. (Copies have been distributed pursuant to the NEF - ECS)

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Hairston v. Gillispie et al Doc. 80 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 LEONARD HAIRSTON, 9 Petitioner, 10 vs. 11 DOUGLAS GILLISPIE, et al., 12 Respondents. 13 14 Petitioner moves this Court to reconsider its denial of his petition for writ of habeas 15 corpus (docket #77) and for copies of various exhibits (docket #78). Respondents have opposed the 16 motion to reconsider (docket #79) and no reply has been filed. 17 Petitioner does not base his motion on any particular aspect of the rules of civil 18 procedure, neither does he cite any statute of legal theory to suggest his right to reconsideration. 19 However, because the motion was made more than ten days after the entry of judgment, Fed. R. Civ. 20 P. 59 cannot apply. Thus, this motion shall be construed to rely on Fed. R. Civ. P. 60. Pursuant to 21 Federal Rules of Civil Procedure 60, a party may obtain relief from judgment or an order for clerical 22 mistakes or due to mistake, inadvertence, excusable neglect, or newly discovered evidence. 23 The petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 was dismissed by 24 this court because it lacked jurisdiction. Petitioner now asserts that he has no other remedy for the 25 severe and "nakked" violations of his due process and equal protection rights. Respondents oppose 26 the motion (docket #79) highlight petitioner's concession that he has not been convicted of state ) ) ) ) ) ) ) ) ) / 2:09-cv-0726-RLH-RJJ ORDER DENYING RECONSIDERATION 1 charges, noting that his criminal trial has been continued several times awaiting the outcome of these 2 proceedings. 3 28 U.S.C. 2254 provides for a means of federal review of a state court conviction. 4 Hairston has not been so convicted and this court cannot entertain his. Stow v. Murashige, 389 F.3d 5 880-885 (9th Cir. 2004). 6 Petitioner also has requested that the Clerk of Court provide him with copies of various 7 exhibits submitted by respondents in support of the motion to dismiss (docket #78). These documents 8 should have been provided to petitioner by respondents with his copy of their motion to dismiss. 9 Alternatively, petitioner, who has not been granted leave to proceed in forma pauperis may pay the 10 required fee to obtain copies from the court's docket. The Clerk shall be directed to inform petitioner 11 of the cost of those copies. 12 IT IS THEREFORE ORDERED that petitioner's Motion for Reconsideration (docket 13 #77) is denied. 14 IT IS FURTHER ORDERED that the motion for copies of exhibits (docket #78) is 15 DENIED. The clerk shall inform petitioner of the cost to obtain copies of the exhibits he requests. 16 17 18 19 20 21 22 23 24 25 26 2 ______________________________________ CHIEF UNITED STATES DISTRICT JUDGE Dated this 24th day of August, 2010.

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