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Wise v. Walker

United States District Court, N.D. California

September 24, 2014

LANARE WISE, Petitioner,
v.
WARDEN JAMES WALKER, Respondent.

ORDER DENYING MOTION FOR RECONSIDERATION (Docket No. 35)

RONALD M. WHYTE, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. After reviewing the briefs and the underlying record, the court concluded that petitioner was not entitled to relief based on the claims presented and denied the petition on August 2, 2010. (Docket No. 23.) On October 9, 2012, the United States Court of Appeal denied petitioner's request for a certificate of appealability. Petitioner also filed a petition for certiorari and a petition for rehearing with the Unites States Supreme Court. Both were denied. (Docket Nos. 32 and 34.) On July 17, 2014, petitioner filed the current motion to set aside default judgment. (Docket No. 35.)

The court construes petitioner's motion as a motion for relief from judgment, pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. See Fed.R.Civ.P. 60(b); School Dist. 1J v. ACandS Inc. , 5 F.3d 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing that the grounds justifying relief are extraordinary. Twentieth Century - Fox Film Corp. v. Dunnahoo , 637 F.2d 1338, 1341 (9th Cir. 1981).

Petitioner does not make a showing of mistake, inadvertence, surprise or excusable neglect. He does not set forth any newly discovered evidence, fraud, or any grounds for finding that the judgment is void or has been satisfied. Nor does he set forth any other reason justifying relief. Rule 60(b)(6) affords courts the discretion and power "to vacate judgments whenever such action is appropriate to accomplish justice." Phelps v. Alameida , 569 F.3d 1120, 1135 (9th Cir. 2009).

In the present motion, filed four years after this court entered judgment against petitioner, petitioner argues that the judgment should be set aside because he believes that the prosecutor presented false evidence at his trial and committed prosecutorial misconduct. Petitioner has not demonstrated extraordinary circumstances. Petitioner is merely rearguing the claims that he presented in his petition in 2010.

Accordingly, the motion for reconsideration is DENIED. No further filings shall be accepted in this closed case.

This order terminates docket number 35.

IT IS SO ORDERED.


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