Guardado v. Nevada Attorney General, et al

Filing 64

ORDER granting 58 Motion to Amend 57 Judgment; directing Clerk to reopen this action; and directing respondents to file answer to Ground 2 of amended petition within 45 days. Please see attached for additional details and deadlines. Signed by Judge Miranda M. Du on 9/14/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MANUEL STEVEN GUARDADO,

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Case No. 3:10-cv-00103-MMD-WGC

Petitioner,

ORDER

v.
NEVADA ATTORNEY GENERAL, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

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U.S.C. § 2254 by a Nevada state prisoner. By order filed February 5, 2015, the Court

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granted respondents’ motion to dismiss this action. (Dkt. no. 56.) Judgment was entered

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on February 5, 2015. (Dkt. no. 57.) Petitioner has filed a motion to amend the judgment

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pursuant to Rule 60(b). (Dkt. no. 58.)

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Under Fed. R. Civ. P. 60(b) the 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 that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.

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A motion under Rule 60(b) must be made within a “reasonable time.” Fed. R. Civ. P.

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60(c)(1). Relief based on mistake, newly discovered evidence, or fraud must be sought

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within one year of final judgment. Fed. R. Civ. P. 60(c)(1).

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Motions to reconsider are generally left to the discretion of the district court.

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Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001). A district court has discretion not to

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consider claims and issues that were not raised until a motion for reconsideration.

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Hopkins v. Andaya, 958 F.2d 881, 889 (9th Cir. 1992). Moreover, motions for

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reconsideration are not justified on the basis of new evidence which could have been

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discovered prior to the court’s ruling. Hagerman v. Yukon Energy Corp., 839 F.3d 407,

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413-14 (8th Cir. 1988); see also E.E.O.C. v. Foothills Title, 956 F.2d 277 (10th Cir. 1992).

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Mere disagreement with an order is an insufficient basis for reconsideration. A motion

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for reconsideration should not be used to make new arguments or ask the Court to

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rethink its analysis. See N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d

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918, 925-26 (9th Cir. 1988).

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In his motion to amend the judgment, petitioner argues that Ground 2 of his

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amended petition should not have been dismissed as procedurally defaulted because it

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was presented and denied on the merits in his first state habeas proceeding. (Dkt. no.

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58.) In Ground 2 of the amended petition, petitioner alleges that his trial counsel was

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ineffective for failing to file suppression motions and advising him to plead guilty without

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conducting a proper investigation. (Dkt. no. 47, at p. 5.) Respondents have filed a

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response to petitioner’s motion, conceding that petitioner’s argument has merit. (Dkt.

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no. 61.)

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After finding that the original petition was mixed, with some exhausted claims and

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some unexhausted claims, this Court granted petitioner a stay to return to state court to

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present his unexhausted claims. (Dkt. no. 35.) Ground 2 of the petition was not among

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the claims the Court identified as unexhausted. (Dkt. no. 31.) When petitioner returned

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to state court, he filed a petition in which he asserted a claim similar to the claim

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presented in Ground 2. (Exh. 116.) The Nevada courts procedurally defaulted his entire

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petition, including a claim similar to the claim presented in Ground 2. (Exhs. 118 & 131.)

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In their motion to dismiss the amended petition, respondents argued that Ground 2 was

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procedurally defaulted, failing to acknowledge that the Nevada state courts originally
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addressed Ground 2 on the merits in petitioner’s first state habeas proceeding. (Dkt. no.

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48; Exhs. 87 & 107.) This error was compounded by the fact that petitioner did not

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present specific arguments regarding Ground 2 in his opposition to the motion to

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dismiss the amended petition. (Dkt. no. 51.) This Court dismissed Ground 2 of the

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amended petition as procedurally defaulted. (Dkt. no. 56.)

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Despite the fact that petitioner failed to raise his arguments regarding Ground 2

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until his motion to amend the judgment, the Court finds that granting petitioner’s motion

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serves the interests of justice. Because the Nevada state courts addressed Ground 2 of

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the amended petition on the merits, Ground 2 is not procedurally defaulted. Petitioner is

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entitled to have Ground 2 of the amended petition adjudicated on the merits. Due to the

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Court’s mistake in finding Ground 2 procedurally defaulted, petitioner’s motion to amend

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the judgment regarding Ground 2 of the amended petition is granted. The Court sets a

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briefing schedule for the filing of an answer and a reply addressing Ground 2 on the

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merits. Thereafter, the Court will consider Ground 2 on the merits.

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It is therefore ordered that petitioner’s motion to amend the judgment (dkt. no.
58) is granted.

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It is further ordered that the Clerk of Court shall reopen this action.

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It is further ordered that respondents shall file and serve an answer to Ground 2

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of the amended petition within forty-five (45) days from the entry of this order. The

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answer shall include substantive argument on the merits of Ground 2 of the amended

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petition. No further motions to dismiss will be entertained.

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It is further ordered that petitioner shall file and serve a reply to the answer,
within forty-five (45) days after being served with the answer.
DATED THIS 14th day of September 2015

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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