IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 16, 2011
DONALD L. SEARCY, PETITIONER,
GARY SWARTHOUT, RESPONDENT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). On September 30, 2011, the court dismissed the petition without prejudice on the ground that petitioner had failed to state a cognizable claim. Dckt. No. 21. Accordingly, the Clerk of the Court entered judgment. Dckt. No. 22. Now pending is petitioner's Motion for Reconsideration of that order, accompanied by petitioner's objections to the magistrate judge's August 30, 2011 Findings and Recommendations. Dckt. No. 24.
Reconsideration is appropriate if the 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. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Additionally, Rule 60(b) of the Federal Rules of Civil Procedure provides as follows:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief Here, petitioner does not demonstrate he is entitled to relief from judgment, as there is no claim of new evidence, clear error, a change in the law, or any other circumstances to justify the requested relief.
Accordingly, IT IS HEREBY ORDERED that petitioner's October 24, 2011 motion for reconsideration is denied.
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