Hughes v. Nevada Department Of Corrections et al

Filing 18

ORDER. IT IS HEREBY ORDERED that petitioner's 10 motion to amend/correct petition for writ of habeas corpus is GRANTED. FURTHER ORDERED, petitioner's 11 motion for district judge to reconsider order denying appointment of counse l is DENIED. FURTHER ORDERED, respondents' 17 motion for extension of time to file response to petition and statement of additional claims is GRANTED. Respondents shall file their response no later than thirty (30) days from the date of entry of this Order. Signed by Judge Edward C. Reed, Jr on 10/18/2011. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MICHAEL RAY HUGHES,
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Petitioner,
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vs.
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NEVADA DEPARTMENT OF
CORRECTIONS, et al.,

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Respondents.
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3:11-cv-00355-ECR-VPC
ORDER

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Michael Ray Hughes, has filed a motion to amend his habeas corpus petition, which
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includes his proposed statement of additional claims (docket #10). Petitioner’s motion is granted.
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Also before the court is petitioner’s motion for district judge to reconsider the order
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denying counsel (docket #11).
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Where a ruling has resulted in final judgment or order, a motion for reconsideration may
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be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure
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59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J
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Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S. 1236 (1994).

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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 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 Garin
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Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party
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must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior
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decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),
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aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir. 1987). Rule 59(e) of the Federal

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Rules of Civil Procedure provides that any “motion to alter or amend a judgment shall be filed no later
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than 28 days after entry of the judgment.” Furthermore, a motion under Fed. R. Civ. P. 59(e) “should
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not be granted, absent highly unusual circumstances, unless the district court is presented with newly
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discovered evidence, committed clear error, or if there is an intervening change in the controlling law.”
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Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253,
1255 (9th Cir. 1999).

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In its Order dated August 17, 2011, the court denied petitioner’s motion for appointment
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of counsel (docket #5). Petitioner has failed to make an adequate showing under either Rule 60(b) or
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59(e) that this court’s Order should be reversed.
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Finally, also before the court is respondents’ motion to extend time to respond to the
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petition (docket #17). Respondents’ motion is granted. Respondents shall file their response to the
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petition and the statement of additional claims no later than thirty days (30) days from the date of entry
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of this Order.
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IT IS THEREFORE ORDERED that petitioner’s motion to amend/correct petition for
writ of habeas corpus (docket #10) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for district judge to reconsider
order denying appointment of counsel (docket #11) is DENIED.

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IT IS FURTHER ORDERED that respondents’ motion for extension of time to file

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response to petition and statement of additional claims (docket #17) is GRANTED. Respondents shall

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file their response to the petition and the statement of additional claims no later than thirty days (30) days

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from the date of entry of this Order.

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Dated this 18th day of October 2011.

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UNITED STATES DISTRICT JUDGE
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