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Warner v. Swarthout

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 22, 2010

DOUGLAS WARNER, PETITIONER,
v.
SWARTHOUT, WARDEN RESPONDENT.

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

ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION

[Doc. 11]

On January 26, 2010, the undersigned dismissed the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 without prejudice for failure to exhaust the state judicial remedies.*fn1 (Court Doc. 9.) The Court also denied Petitioner's motion to stay and hold the petition in abeyance. (Id.)

Now pending before the Court is Petitioner's motion for reconsideration filed on February 18, 2010. (Court Doc. 11.) Petitioner requests to submit a new petition containing the exhausted claims that he neglected to present in his original petition. (Id.)

Rule 60 of the Federal Rule of Civil Procedure 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). The motion for reconsideration must be made within a reasonable time, in any event, "not more than one year after the judgment, order, or proceeding was entered or taken." Id.

To the extent Petitioner seeks to present new claims to this Court by way of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, his remedy is to re-file a new § 2254 petition- not reconsideration and reinstatement of this action. Accordingly, Petitioner's motion for reconsideration is HEREBY DENIED.

IT IS SO ORDERED.


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