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Franklin v. Virga

United States District Court, Ninth Circuit

October 11, 2013

TIM VIRGA, Respondent.


KIMBERLY J. MUELLER, District Judge.

Respondent moves for reconsideration of the court's order granting in part and denying in part petitioner's motion for an evidentiary hearing. After considering the parties' pleadings, the court hereby DENIES the motion.


Petitioner is a state prison inmate challenging a Plumas County conviction for the murder of his wife.

Petitioner sought an evidentiary hearing on five of the twenty-two claims in his amended petition: the prosecutor used his peremptory challenges to remove men from the jury (claim four); multiple instances of jury misconduct deprived petitioner of a fair trial (claim six); trial counsel was ineffective by failing to object to the prosecutor's misleading chart or the prosecutor committed misconduct by using the chart (claim nine); counsel was ineffective by failing to undertake the necessary investigation to allow him adequately to cross-examine the prosecution's biomechanical engineering expert (claim eleven); and petitioner was denied a fair trial because he was not permitted to conduct dynamic testing on the snowmobile (claim twelve).

This court granted the motion as to petitioner's claim that during trial Juror No. 3 told Mark Delizio he believed petitioner was guilty. ECF No. 109 at 28. It found the state court's factual resolution of this issue unreasonable under 28 U.S.C. § 2254(d)(2) because the state courts concluded Juror No. 3's declaration was more reliable than Delizio's without holding an evidentiary hearing and determined that petitioner had made a colorable claim of juror bias. ECF No. 109 at 24-25.


"A district court's power to rescind, reconsider, or modify an interlocutory order is derived from the common law, not from the Federal Rules of Civil Procedure." City of Los Angeles v. Santa Monica BayKeeper, 254 F.3d 882, 886 (9th Cir. 2001); McConnell v. Lassen Cnty., No. 2:05-cv-0909 FCD DAD, 2008 WL 4482853, at *2 (E.D. Cal. Oct. 3, 2008) ("Where reconsideration of a non-final order is sought, the court has inherent jurisdiction to modify, alter, or revoke it.'" (quoting United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000)). In addition, Federal Rule of Civil Procedure 54(b) authorizes courts to revise "any order or other decision... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties... at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." FED. R. CIV. P. 54(b); Regents of Univ. of Calif. v. Bernzomatic, No. 2:10-cv-1224 FCD GGH, 2011 WL 666912, at *2 (E.D. Cal. Feb. 11, 2011) (relying on Rule 54 in deciding whether to reconsider the denial of summary judgment). Reconsideration is appropriate where there has been an intervening change in controlling law, new evidence has become available, or it is necessary to correct clear error or prevent manifest injustice. Cachil Dehe Band of Wintun Indians v. California, 649 F.Supp.2d 1063, 1069 (E.D. Cal. 2009) (citing School Dist. No. 1J Multnomah Cnty. v. AC&S Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)).[1] A party should "not use a motion for reconsideration to raise arguments or present new evidence for the first time when it could reasonably have been raised earlier in the litigation, " id., nor should the party "ask the court to rethink matters already decided." American Rivers v. NOAA Fisheries, No. CV-04-00061-RE, 2006 WL 1983178, at *2 (D. Or. Jul. 14, 2006) (citing Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003)).

Under Local Rule 230(j), the party moving for reconsideration must set forth:

(1) when and to what [j]udge... the prior motion was made; (2) what ruling... was made thereon; (3) 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; and (4) why the facts or circumstances were not shown at the time of the prior motion.

L.R. 230(j). "To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Knight v. Rios, No. 1:09-cv-00823-AWI-JLT HC, 2010 WL 5200906, at *2 (E.D. Cal. Dec.15, 2010).


Respondent asks this court to reconsider its prior order because of the Supreme Court's decision in Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446 (2013), and because Juror No. 3, Randall Lynn Beck, is deceased. ECF No. 110. He also argues that the evidentiary hearing is not warranted under 28 U.S.C. § 2254(d)(2) because "the premise that a state court may not make an evidentiary finding regarding conflicting evidence without holding a hearing is flatly wrong, " and argues the court erred in finding the juror misconduct claim colorable. ECF No. 110 at 6.

Petitioner counters that Marshall does not change the law and is, in any event, inapplicable, as it concerns § 2254(d)(1), not (d)(2). He contends the court correctly found the claim to be colorable and properly analyzed the applicable law under (d)(2). Finally, he notes that despite the death ...

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