The opinion of the court was delivered by: Garland E. Burrell, JR.Senior United States District Judge
By order filed on January 4, 2012, this habeas petition was dismissed
without prejudice and judgment thereon entered. Petitioner filed a
motion for entry of new judgment on February 7, 2012 (by application
of the mailbox rule,*fn1 on January 26, 2012), and a
notice of appeal, on February 22, 2012, as well as a motion for a
certificate of appealability. The certificate of appealability was
denied, on June 14, 2012, and the appeal was processed. Thereafter, an
order issued, on July 7, 2012, from the Ninth Circuit's Clerk of
Court, informing this court that the appeal would be held in abeyance
pending the district court's ruling on petitioner's motion for a new
judgment, in accordance with Fed. R. App. P. 4(a)(4).*fn2
See Order, filed on , citing Leader National Insurance Company v. Industrial
Indemnity Insurance Company, 19 F.3d 444 (1994).
In the February 7, 2012, motion, which he referenced again in a filing on May 25, 2012, was brought, according to petitioner, under Fed. R. Civ. P. 59(a)(2), which states:
Further Action after a Non-jury Trial. After a non-jury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
Given that there was no trial in this habeas matter, petitioner simply does not have any basis for bringing this motion:
As this circuit has noted, "Rule 59 does not specify the grounds on which a motion for a new trial may be granted." Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is "bound by those grounds that have been historically recognized." Id. Historically recognized grounds include, but are not limited to, claims "that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving." Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). We have held that "[t]he trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000).
Molski v. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007).
The court will construe petitioner's motion as one to alter or amend a judgment, under Fed. R. Civ. P. 59(e). Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus, Local Rule 230(j)(3) requires that a party seeking reconsideration of a district court's order to brief the "new or different facts or circumstances which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion... ." The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).
Courts construing Federal Rule of Civil Procedure 59(e), providing for the alteration or amendment of a judgment, have noted that a motion to reconsider is not a vehicle permitting the unsuccessful party to engage in "either repetitive contentions of matters which were before the court on its prior consideration or contentions which might have been raised prior to the challenged judgment." Costello v. United States, 765 F.Supp. 1003, 1009 (C.D.Cal. 1991); see also F.D.I.C. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991) ( "motions for reconsideration are not at the disposal of an unsuccessful party to 'rehash' the same arguments and facts previously presented."). These holdings "reflect district courts' concerns for preserving dwindling resources and promoting judicial efficiency." Costello, 765 F.Supp. at 1009.
This habeas application was dismissed as successive because herein: petitioner once again unmistakably challenges the same California state court conviction at issue in Civ-S-04-1173 GEB GGH P when he alleges that a prior Florida plea bargain was breached when he was sentenced under the Three Strikes Law in California to a state prison term of 25 years to life for passing bad checks.
See Findings and Recommendations (docket # 10), p. 2, adopted by Order (docket # 13).
Petitioner, in his motion to alter the judgment, raises no new ground or change in the law, but rather persists in seeking to proceed on what he mischaracterizes as a new ground, his claim for specific performance of the allegedly breached plea bargain referenced above.*fn3 By seeking to frame the instant petition as one for leave to amend a petition, a petition that has been previously adjudicated, petitioner cannot evade the procedural requirements of 28 U.S.C. § 2244(3)(A) requiring that "[b]efore a second or successive application ...is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."*fn4
Nor do petitioner's references to requests for recusal of the undersigned and Magistrate Judge Hollows bear consideration where his claims of bias are wholly ...