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Rogers v. United States

United States District Court, C.D. California

December 19, 2014

GERALD L. ROGERS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER DEFENDANT'S MOTION FOR RECONSIDERATION [11]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Petitioner Gerald L. Rogers'("Petitioner") Motion for Reconsideration. For the following reasons, the Court DENIES Petitioner's Motion.

I. Background

Petitioner was convicted of and sentenced for eight counts of mail fraud (18 U.S.C. § 1341) and twenty-one counts of aiding and assisting the preparation of false income tax returns (26 U.S.C. § 7206(2)). Petitioner was sentenced on March 26, 1990 to serve 10 years in prison.

After this sentence, Petitioner was convicted of multiple counts of mail fraud and securities violations in the District of Colorado. In October 1990, Petitioner was sentenced in the District of Colorado to 25 years in prison, to run consecutively with the 10 year sentence in this case. This sentence was affirmed on appeal. United States v. Rogers , 960 F.2d 1501 (10th Cir. 1992).

The Ninth Circuit affirmed Petitioner's conviction in this case, but remanded for re-sentencing. United States v. Rogers, 8 F.3d 33 (9th Cir. 1993). On July 11, 1994, Petitioner was re-sentenced to the same term of 10 years in prison.

Since Petitioner's conviction, Petitioner has filed multiple post-conviction pleadings and motions. He has filed at least four motions under 28 U.S.C. § 2255: (1) filed on December 17, 1993 and denied on June 20, 1994; (2) filed November 3, 1994 and denied on January 25, 1995; (3) filed on July 18, 2006 and denied on October 3, 2006; and (4) filed on March 17, 2008 and denied on June 12, 2008. Petitioner filed a Motion Pursuant to U.S. v. Tanke to Dismiss Lulling Letter Counts and Set Aside Sentence on June 27, 2014.On August 1, 2014, the Court issued an Order denying Petitioner's June 27, 2014 Motion Pursuant to U.S. v. Tanke to Dismiss Lulling Letter Counts and Set Aside Sentence, holding that Petitioner essentially filed another 28 U.S.C. § 2255 motion. See Dkt. # 9. Because Defendant had previously filed a § 2255 habeas petition, to succeed on his Motion, Petitioner was required to comply with § 2255(h)'s strict requirements before filing a successive motion. See id. at 6:7-10. Because Petitioner did not comply with those requirements, his Motion was denied. Id . 7:4-7.

II. Discussion

A. Legal Standard

Motion for Reconsideration

Petitioner brings a Motion for Reconsideration. Federal Rule of Civil Procedure 59(e) permits a court to alter or amend a previously entered order. Carroll v. Nakatani , 342 F.3d 934, 945 (9th Cir. 2003). Generally, "a motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" Kona Enters., Inc. v. Estate of Bishop , 229 F.3d 877, 890 (9th Cir. 2000) (quoting 389 Orange St. Partners v. Arnold , 179 F.3d 656, 665 (9th Cir. 1999)); Sch. Dist. No. 1J, Multnomah Cnty., Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Carroll , 342 F.3d at 945 (citing Kona Enters. , 229 F.3d at 890).

In the Central District of California, a party may only make a motion for reconsideration on three grounds:

(a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any matter repeat any oral or written argument made in support of or in opposition to the original motion.

C.D. Cal. L.R. 7-18. Furthermore, a Motion for Reconsideration may not "in any manner repeat any oral or written argument made in support of or in opposition to the original motion." C.D. Cal. L.R. 7-18. "Whether or not to grant reconsideration is committed to the sound discretion of the court." Navajo Nation v. Confederated Tribes & Bands of the Yakama ...


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