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Theron Kenneth Holston v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 9, 2011

THERON KENNETH HOLSTON, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

ORDER

On April 14, 2011, the court found that petitioner has failed to exhaust state court remedies with respect to his second claim. That being the case, the court ordered petitioner to inform the court whether he will seek a stay so that he may exhaust state court remedies with respect to his second claim or simply proceed on his other claim. On April 25, 2011, petitioner filed a motion asking the court reconsider its ruling.

A court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e) or 60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). "Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Id. at 1263.

Petitioner does not present newly discovered evidence, there has been no change in the law and petitioner fails to point to anything suggesting the court's April 14, 2011 order is erroneous or manifestly unjust. Petitioner seems to suggest that the court waive the exhaustion requirement because petitioner did not raise his claim on direct review and direct review has now ended. However, petitioner has not shown that he may not pursue exhaustion through a collateral action.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's April 25, 2011 motion for reconsideration is denied; and

2. Petitioner is granted until June 1, 2011 to comply with the terms of the court's April 14, 2011 order. Failure to comply with the April 14, 2011 order by June 1, 2011 will result in dismissal.

20110509

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