Olausen v. Baca et al

Filing 21

ORDER denying 18 Motion for District Judge to Reconsider Order. Signed by Judge Robert C. Jones on 1/25/16. (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 STEVEN OLAUSEN,

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Petitioner,

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vs.

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3:15-cv-00127-RCJ-VPC

ISIDRO BACA, et al.,

ORDER
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Respondents.
_____________________________/

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On November 9, 2015, the court dismissed this habeas corpus action, upon a motion by the
respondents, concluding:
This action is plainly a successive habeas petition, and Olausen has not
obtained authorization for it from the court of appeals as required by 28 U.S.C.
§ 2244(b). Therefore, this action will be dismissed.

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Order entered November 9, 2015 (ECF No. 16), p. 7. The court denied the petitioner a certificate of

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appealability. Id. Judgment was entered on that same date. See Judgment (ECF No. 17).

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On November 19, 2015, the petitioner, John Steven Olausen, filed a motion for

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reconsideration (ECF No. 18). Respondents filed an opposition to that motion on December 7, 2015

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(ECF No. 19). Olausen replied on December 15, 2015 (ECF No. 20).

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

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as either a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or

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a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). School Dist.

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No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert. denied 512 U.S.

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1236 (1994).

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Under Rule 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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Fed. R. Civ. P. 60(b). In order to succeed on a motion for reconsideration, a party must set forth

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facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See

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Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part

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and rev'd in part on other grounds 828 F.2d 514 (9th Cir. 1987).

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A motion to alter or amend a judgment, under Rule 59(e), “should not be granted, absent

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highly unusual circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law.” Herbst v. Cook,

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260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.

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1999).

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It is beyond reasonable argument that this is a successive habeas petition subject to dismissal

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pursuant to 28 U.S.C. § 2244(b). See Order entered November 9, 2015 (ECF No. 16). Olausen has

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not shown any reason for reconsideration of that determination.

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IT IS THEREFORE ORDERED that petitioner’s Motion for Reconsideration (ECF No.
18) is DENIED.
DATED this 25th day of January, 2016.
Dated this _____ day of January, 2016.

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UNITED STATES DISTRICT JUDGE

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