O'Keefe v. LeGrand et al

Filing 6

ORDER denying Petitioner's ECF No. 5 Motion for Reconsideration. Signed by Judge Howard D. McKibben on 8/17/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,

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Petitioner,

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vs.

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ROBERT LeGRAND, et al.,

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3:16-cv-00471-HDM-VPC

Respondents.

ORDER

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_________________________________/

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This is a habeas corpus action, brought by Nevada prisoner Brian Kerry O’Keefe. O’Keefe

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initiated the action on August 8, 2016 (ECF No. 1). On August 10, 2016, the court screened

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O’Keefe’s petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Courts, determined that it is plainly without merit, and summary dismissed it (ECF

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No. 3); judgment was entered on that same date (ECF No. 4).

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On August 16, 2016, O’Keefe filed a motion for reconsideration (ECF No. 5).

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

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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

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law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon, 197

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F.3d 1253, 1255 (9th Cir. 1999).

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O’Keefe presents no reason for the court to reconsider the dismissal of this action. In his

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habeas petition in this case, O’Keefe does not articulate any viable claim that he is held in custody in

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violation of the constitution, laws, or treaties of the United States. See 28 U.S.C. § 2241. O’Keefe’s

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habeas petition in this case is plainly without merit, and was properly summarily dismissed.

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IT IS THEREFORE ORDERED that petitioner’s Motion for Reconsideration (ECF No. 5)
is DENIED.
Dated this 17th day of August, 2016.

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UNITED STATES DISTRICT JUDGE
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