United States District Court, E.D. California
ORDER DENYING MOTION FOR TO RECONSIDER DISMISSAL OF PETITION, MOTION TO RECONSIDER THE DENIAL OF APPOINTMENT OF COUNSEL, AND MOTION TO RECUSE (ECF NO. 20)
LAWRENCE J. O'NEILL, District Judge.
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On October 22, 2014, the assigned Magistrate Judge issued a Findings and Recommendation that recommended that the petition be dismissed as frivolous. On December 11, 2014, the undersigned adopted the Findings and Recommendation, and the petition was dismissed as frivolous. On December 24, 2014, Petitioner filed the instant motion for reconsideration.
A. Motion for Reconsideration of Dismissal of Petition
Petitioner has not indicated whether he is seeking a motion to alter or amend judgment under Federal Rules of Civil Procedure § 59(e) or a motion for relief from judgment or order under Federal Rules of Civil Procedure § 60(b). Therefore, the Court will discuss both standards.
Rule 59(e) of the Federal Rules of Civil Procedure provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Common grounds for a court to grant a motion to alter or amend judgment include newly discovered evidence, the district court committed clear error or its initial decision was manifestly unjust, or there was an intervening change in controlling law. See School Dist. No. 1J, Multnomah County, Or. V. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); McDowell v. Calderon , 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc). However, a motion to alter or amend the judgment must be filed "no later than 10 days after the entry of the judgment." Fed.R.Civ.P. 59(e). Here, Petitioner filed his motion for reconsideration thirteen days after the entry of the judgment, and therefore, he did not file his motion for reconsideration within the appropriate 10 day timeframe under Fed.R.Civ.P. 59(e). Thus, Petitioner is not entitled to relief under Fed.R.Civ.P. 59(e).
Rule 60(b) of the Federal Rules of Civil Procedure provides:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or ...