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Emelito Exmundo v. R. H.

May 10, 2012

EMELITO EXMUNDO,
PETITIONER,
v.
R. H., TRIMBLE, ACTING WARDEN, RESPONDENT.



ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF THE ) DISMISSAL OF THE PETITION (DOCS. 10, 7-9) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's motion for reconsideration of the dismissal of the petition, which was filed on April 26, 2012.

I. Background

On March 2, 2012, the Magistrate Judge issued findings and recommendations to dismiss the petition and to decline to issue a certificate of appealability. The findings and recommendations informed Petitioner that objections were due within thirty days of service, and they were mailed to Petitioner on the day they were filed. (Docs. 7-9.) No objections were filed within the pertinent period. On April 24, 2012, the Court adopted the findings and recommendations to dismiss the petition without leave to amend, and the case was dismissed.

In the motion for reconsideration, Petitioner states that he does not object to the findings and recommendations, but rather he is requesting reconsideration of facts, and he is submitting the request to clarify factual misunderstandings. His request is verified. His request will be considered as a request for reconsideration of the Court's dismissal of his petition.

In the dismissed petition, Petitioner raised various claims concerning a prison disciplinary finding that he was guilty of unauthorized possession of medications. *fn1 Petitioner's claims were analyzed in the findings and recommendations, which were adopted in full by the Court in connection with its order of dismissal.

II. Motion for Reconsideration

A. Legal Standards

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 various grounds, including 1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence; 3) fraud or misconduct by an opposing party; 4) a void judgment; 5) a satisfied judgment; or 6) any other reason that justifies relief from the judgment. Fed. R. Civ. P. 60(b). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the Court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit has stated that "[c]lause 60(b)(6) is residual and 'must be read as being exclusive of the preceding clauses.'" LaFarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th Cir. 1981)). Accordingly, "the clause is reserved for 'extraordinary circumstances.'" Id.

Further, when filing a motion for reconsideration, Local Rule 230(j) requires a party to show the "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," as well as "why the facts or circumstances were not shown at the time of the prior motion."

A district court may properly deny a motion for reconsideration that simply reiterates an argument already presented by the petitioner. Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995).

B. Analysis

1. Laboratory Testing of the Medication

Petitioner states that California regulations require a field test to identify medications as a safeguard against arbitrary findings of possession of controlled substances.

However, this claim is based on state law. Such a claim does not provide a basis for relief pursuant to Rule 60 because it is not cognizable in this proceeding. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. ...


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