Rush v. Palmer et al

Filing 20

ORDER denying 19 Motion for Relief from Order Denying Petition. Signed by Judge Larry R. Hicks on 6/11/12. (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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JOHN RUSH,

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Petitioner,
vs.

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JACK PALMER, et al.,
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Respondents.
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3:12-cv-00012-LRH-WGC
ORDER

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Petitioner, a Nevada state prisoner, filed a pro se petition for writ of habeas corpus pursuant to

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28 U.S.C. § 2254, which this court dismissed as untimely on May 17, 2012 (ECF #17). Judgment was

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entered that day (ECF #18). Before the court is petitioner’s motion for relief from order denying petition

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for writ of habeas corpus (ECF #19).

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Where a ruling has resulted in final judgment or order, a motion for reconsideration may be

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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

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following reasons:
(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

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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,

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1255 (9th Cir. 1999).

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In his motion, petitioner asks that the court grant him a certificate of appealability based on his

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assertion that this court misapprehended the merits of his claims (ECF #19). However, in its order dated

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May 17, 2012, this court dismissed the petition as untimely (ECF #17). Petitioner has failed to make

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an adequate showing under Rule 60(b) that any portion of this court’s order denying his petition should

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be reversed.

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IT IS THEREFORE ORDERED that petitioner’s motion for relief from order denying petition
for writ of habeas corpus (ECF #19) is DENIED.

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Dated this 11th day of June, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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