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Allen v. Walker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

MARTY GLEN ALLEN, PETITIONER,
v.
J. WALKER, RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF ORDER DENYING CERTIFICATE OF APPEALABILITY

[Doc. 49]

On October 6, 2008, Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 was denied on the merits and judgment was entered in favor of Respondent. (Court Docs. 42, 43.) In that order the Court also declined to issue a certificate of appealability. (Court Doc. 42.)

On November 4, 2008, Petitioner filed a timely notice of appeal, along with a motion for a certificate of appealability. (Court Docs. 44, 45.) On November 24, 2008, Petitioner filed a second notice of appeal and a motion for reconsideration of the order denying a certificate of appealability. (Court Docs. 48, 49.)

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on the grounds of: "(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 . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . ; or (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b).

A motion for reconsideration is not the place to ask the Court to reconsider an argument already rejected by the Court. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998). "'A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'" U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (citations omitted).

Petitioner's motion for reconsideration must be denied. Petitioner presents nothing more than his mere disagreement with the Court's order denying a certificate of appealability, and therefore presents no basis for reconsideration. Accordingly, Petitioner's motion for reconsideration is DENIED.

IT IS SO ORDERED.

20081215

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