Martin v. Baca et al

Filing 31

ORDER denying 14 Motion for District Judge to Reconsider Order; granting nunc pro tunc 15 Motion to Extend Time; granting 17 Motion to Seal; and granting 30 Motion to Extend Time to Oppose 16 Motion to Dismiss. Response due within 60 days. Signed by Judge Robert C. Jones on 11/9/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RICHARD W. MARTIN,
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Petitioner,

Case No. 3:15-cv-00036-RCJ-WGC

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vs.

ORDER

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ISIDRO BACA, et al.,
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Respondents.
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This habeas matter is before the court on petitioner Martin’s motion for reconsideration of this

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court’s order denying his motion for appointment of counsel (ECF No. 14). 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 or

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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 F.3d

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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:
(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,

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1255 (9th Cir. 1999).

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This court had noted previously that it appeared that Martin indicated on his motion for

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appointment of counsel that he had prepared it and that the motion was clear and organized (ECF No.

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13). Now Martin asserts that another inmate prepared his motion for counsel and that he has had inmate

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legal assistance with all his pleadings. Even assuming Martin has had inmate legal assistance, this court

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has reviewed the docket and remains unconvinced that appointment of counsel is warranted here.

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Petitioner has failed to make an adequate showing under either Rule 60(b) or 59(e) that this court’s

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order denying his motion for appointment of counsel should be reversed.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration of this court’s
order denying his motion for appointment of counsel (ECF No. 14) is DENIED.
IT IS FURTHER ORDERED that respondents’ motion to extend time to respond to the
petition (ECF No. 15) is GRANTED nunc pro tunc.

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IT IS FURTHER ORDERED that respondents’ motion to seal (ECF No. 17) is GRANTED.

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IT IS FURTHER ORDERED that petitioner’s motion for extension of time to oppose the

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motion to dismiss (ECF No. 30) is GRANTED. Within sixty (60) days of the date of this order,

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petitioner shall file and serve his opposition.
DATED: This 9th day of November, 2015.
Dated this ______ day of October, 2015.

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UNITED STATES DISTRICT JUDGE
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