Fisher v. Baker

• Court: District Court, D. Nevada
• Decided: January 24, 2020
• Docket: 3:19-cv-00355
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DALE ALLEN FISHER, Case No. 3:19-cv-00355-MMD-CBC

7 Petitioner, ORDER v. 8 RENEE BAKER, et al., 9 Respondents. 10 11 This habeas matter is before the Court on Petitioner Dale Allen Fisher’s Motion for 12 Reconsideration (the “Motion”) (ECF No. 8). For the reasons discussed below, the Court 13 will deny the Motion. 14 Petitioner commenced this proceeding by filing a petition for writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. The Petition challenged a conviction and sentence 16 imposed by the Eighth Judicial District Court for Clark County in December 2013. State 17 of Nevada v. Fisher, Case No. C-13-291576-1. The Court issued an order to show cause 18 why his Petition should not be dismissed as untimely. (ECF No. 3.) Petitioner conceded 19 his federal claims were untimely but should be equitably tolled, based on the faulty advice 20 he received from defense counsel. (ECF No. 5.) On October 21, 2019, the Court 21 dismissed the Petition with prejudice as untimely and denied the remaining motions. (ECF 22 No. 6.) Petitioner filed his current motion less than two weeks later. 23 Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or 24 amend a judgment must be filed no later than 28 days after the entry of the judgment.” 25 Fed. R. Civ. P. 59(e). A post-judgment motion for reconsideration in a habeas proceeding, 26 filed within 28 days of entry of the judgment, is properly construed as a motion to alter or 27 amend the judgment under Rule 59(e). Rishor v. Ferguson, 822 F.3d 482, 489-90 (9th 28 Cir. 2016) (citation omitted). 1 Here, Petitioner filed his motion for reconsideration on November 4, 2019. 2 Because it was filed 14 days after entry of the judgment on October 21, 2019, the Court 3 treats the request as a motion to alter or amend judgment under Rule 59(e). 4 As the Ninth Circuit has recognized, “a Rule 59(e) motion is an extraordinary 5 remedy, to be used sparingly in the interests of finality and conservation of judicial 6 resources.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (quotation omitted). 7 Absent highly unusual circumstances, reconsideration under Rule 59(e) is “available only 8 when (1) the court committed manifest errors of law or fact, (2) the court is presented with 9 newly discovered or previously unavailable evidence, (3) the decision was manifestly 10 unjust, or (4) there is an intervening change in the controlling law.” Rishor, 822 F.3d at 11 491-92; see also Wood, 759 F.3d at 1121 (citing McDowell v. Calderon, 197 F.3d 1253, 12 1255 (9th Cir. 1999) (en banc)). 13 “A motion for reconsideration is not an avenue to re-litigate the same issues and 14 arguments upon which the court already has ruled.” W. Shoshone Nat. Council v. United 15 States, 408 F. Supp. 2d 1040, 1053 (D. Nev. 2005). The fact that a litigant disagrees with 16 the court’s decision, but fails to present a legitimate basis for the court to reconsider its 17 decision, will not entitle the litigant to relief. E.g., Backlund v. Barnhart, 778 F.2d 1386, 18 1388 (9th Cir. 1985) (holding that a district court properly denied a motion to reconsider 19 in which plaintiff presented no arguments that were not already raised in his original 20 motion). 21 Nothing in the Motion convinces the Court that it clearly erred in dismissing this 22 action as untimely. Petitioner contends that the Court overlooked parts of his arguments 23 for equitable tolling. (ECF No. 8 at 4-5.) To the contrary, the Court thoroughly considered 24 all of Petitioner’s arguments in its prior ruling, but it is not required to address each 25 argument a petitioner raises. The Court’s order sufficiently explains why the Petition was 26 dismissed as untimely and why Petitioner failed to meet his burden of showing an 27 entitlement to equitable tolling. The motion for reconsideration does not cite—let alone 28 /// 1 || attempt to comply with—the applicable legal standard. Petitioner has not stated a 2 || meritorious reason to reconsider prior rulings and alter the judgment in this case. 3 Accordingly, Petitioner Dale Allen Fisher’s Motion for Reconsideration (ECF No. 8) 4 || is denied. 5 DATED THIS 24" day of January 2020. 6 A Cf A IRANDA M. DU 8 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28