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Jeffery Paul Hortsman v. Cheryl K. Pliler

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


June 23, 2011

JEFFERY PAUL HORTSMAN,
PETITIONER,
v.
CHERYL K. PLILER, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's request for reconsideration of the order dismissing his untimely petition. He claims there is a new United States Supreme Court decision, Beard v. Kindler, 130 S. Ct. 612 (2009), which holds the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") do not apply to federal habeas petitions in California.*fn1 He is requesting the ability to refile or reinstate his habeas petition.

To the extent petitioner is requesting reconsideration of this court's order, such a request must be denied as untimely. The court may grant reconsideration of a final judgment under Federal Rules of Civil Procedure 59(e) and 60. Generally, a motion for reconsideration of a final judgment is appropriately brought under Federal Rule of Civil Procedure 59(e). See Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985) (discussing reconsideration of summary judgment); see also Schroeder v. McDonald, 55 F.3d 454, 458-59 (9th Cir. 1995). The motion must be filed no later than ten days after entry of the judgment.*fn2 See Fed. R. Civ. P. 59(e). Under Rule 59(e), three grounds may justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.*fn3 See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); accord School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Under Rule 60(a), the court may grant reconsideration of final judgments and any order based on clerical mistakes. Relief under this rule can be granted on the court's own motion and at any time. See Fed. R. Civ. P. 60(a). However, once an appeal has been filed and docketed, leave of the appellate court is required to correct clerical mistakes while the appeal is pending. See id.

Under Rule 60(b), the court may grant reconsideration of a final judgment and any order based on, among other things: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which, with reasonable diligence, could not have been discovered within ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an opposing party. A motion for reconsideration on any of these grounds must be brought within a reasonable time and no later than one year of entry of judgment or the order being challenged. See Fed. R. Civ. P. 60(c)(1).

Here, final judgment was entered on February 14, 2007. Petitioner then appealed that decision, which was denied by the Ninth Circuit Court of Appeals on August 6, 2007. More than one year has elapsed since entry of judgment in this case. Petitioner's May 23, 2011, request for reconsideration is therefore untimely.*fn4

Accordingly, IT IS HEREBY ORDERED that petitioner's request for reconsideration (Doc. 32) is denied.


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