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Jose L. Moreno v. Office of Warden

November 6, 2012



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 made pursuant to Fed. R. Civ. P. 60 for relief from the judgment previously entered in this case. Petitioner's motion was filed on October 9, 2012, and was electronically served on counsel for Respondent and various representatives of the Department of Justice of the State of California. No opposition to the motion has been filed.

I. Background

Petitioner filed the petition in this action on October 15, 2004, and a first amended petition on April 12, 2005. Petitioner challenged his 2000 conviction in the Kern County Superior Court of three counts of second degree murder, three counts of vehicular manslaughter with gross negligence, and related counts concerning driving under the influence with bodily injury resulting. (Doc. 27, 1.) After an answer was filed, the Magistrate Judge filed on February 1, 2007, findings and recommendations to deny the petition as to most claims and to dismiss Petitioner's claim that his sentence was unconstitutional for failure to exhaust state court remedies. (Doc. 27, 4-14.) The findings and recommendations were mailed to Petitioner on the day they were filed, and they informed Petitioner that objections were due within thirty days of service. On February 20, 2007, objections were filed. (Doc. 28.) On April 13, 2007, the Court adopted the findings and recommendations in full, and judgment was entered. (Docs. 29-31.) Petitioner appealed, and both this Court and the Court of Appeals declined to issue a certificate of appealability. (Docs. 33, 35, 41.)

The findings and recommendations reflect that Petitioner was sentenced to forty-five years in state prison after a jury trial. (Doc. 27, 1.) Petitioner's convictions were based on his having driven at a high rate of speed without a valid driver's license and with a blood alcohol level of 1.138 (sic) or higher. (Id. at 2.) He swerved while attempting to pass another car, hit a center road divider, went airborne, landed on top of an oncoming vehicle, and thereby killed three occupants of the vehicle and substantially injured two other occupants as well as a passenger in Petitioner's vehicle. Petitioner had previously been arrested at least twice for driving under the influence of alcohol. (Id.)

Petitioner argued that imposition of three consecutive terms was erroneous under California Penal Code § 654. (Id. at 13.) This Court concluded that Petitioner's claim was a state law claim that was not cognizable in a proceeding pursuant to § 2254; Petitioner did not state a colorable federal claim; and because Petitioner had not presented the federal claim to the state court, Petitioner had failed to exhaust his state court remedies. (Id.) Petitioner also argued that his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment. The Court dismissed the claim without prejudice so Petitioner could exhaust state court remedies before filing a new federal petition. (Id.)

In the motion for reconsideration, Petitioner states the following:

Petitioner's motion is based on Cunningham v. California, (2007) 549 U.S. 270, a case that was not available to the court's decision and could have resulted in a more favorable ruling in petitioner's favor in relation to the claim before the court in the present petition (Case No. 1:12-cv-01415 MJS HC).

Wherefore relief from judgment is requested in order to properly resolve petitioner's cclaim (sic) on the merits. (Mot., doc. 42, 1.)

II. Motion for Relief from Judgment

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. ...

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