(HC) Ward v. Peery

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH VINCENT WARD, No. 2:21-cv-02220-DAD-KJN (HC) 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 13 v. (Doc. No. 27) 14 SUZANNE M. PEERY, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 27, 2023, the court issued an order adopting the assigned magistrate judge’s June 21 1, 2023 findings and recommendations and denying petitioner’s motions for a stay and to compel 22 discovery. (Doc. No. 26.) On August 11, 2023, the court received petitioner’s motion for 23 reconsideration of the July 27, 2023 order. (Doc. No. 27.) 24 Federal Rule of Civil Procedure 60(b) governs the reconsideration orders of the district 25 court. Rule 60(b) permits a district court to relieve a party from an order or judgment on grounds, 26 among others, of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 27 discovered evidence . . .; (3) fraud . . . by an opposing party.” Fed. R. Civ. P. 60(b). 28 ///// 1 Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to 2 show the “new or different facts or circumstances claimed to exist which did not exist or were not 3 shown upon such prior motion, or what other grounds exist for the motion.” L.R. 230(j). To 4 succeed on a motion for reconsideration, a party must set forth facts or law of a strongly 5 convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water 6 Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part 7 on other grounds, 828 F.2d 514 (9th Cir. 1987). Reconsideration of a prior order is an 8 extraordinary remedy “to be used sparingly in the interests of finality and conservation of judicial 9 resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation 10 omitted); see also Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (addressing 11 reconsideration under Rule 60(b)). 12 In his motion for reconsideration, petitioner, in large part, simply repeats his questioning 13 of the underlying criminal investigation and prosecution of his case in state court (including his 14 allegation of Brady violations with respect to evidence allegedly in the possession of law 15 enforcement in the State of Nevada), as well as the handling of his defense by his counsel in that 16 prosecution. (Doc. No. 27.) In addition, petitioner suggests that he is innocent of the murder for 17 which he was convicted. (Id. at 4–5, 9.) Petitioner’s arguments fail to provide any basis upon 18 which this court should reconsider its order determining that his unexhausted claims were time- 19 barred and that he was not entitled to a stay of these proceedings under either the decision in 20 Rhines v. Weber, 544 U.S. 269 (2005) or that in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), 21 overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). (See Doc. No. 22 26 at 2) (citing King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009)). Nor has petitioner 23 presented any legal argument supported by authority which would call for the reconsideration of 24 the court’s denial of his motion to compel discovery as to his unexhausted and time-barred 25 claims. 26 Accordingly, petitioner’s motion for reconsideration (Doc. No. 27) of this court’s July 27, 27 2023 order is hereby denied. As noted in the court’s prior order, this action now proceeds on 28 petitioner’s sole exhausted claim presented in his original petition in which he asserts that the 1 | jury’s verdict finding him competent to stand trial was not supported by substantial evidence (see 2 || Doc. No. | at 6). This action is referred back to the assigned magistrate judge for further 3 | proceedings. 4 IT IS SO ORDERED. > | Dated: _ August 22, 2023 Da A. 2, pel 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28