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Patterson v. Sherman

United States District Court, E.D. California

March 23, 2017

VESTER L. PATTERSON, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

          ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT AND MOTION FOR APPLICATION FOR RELEASE ORDER GRANTING MOTION TO AMEND TO NAME PROPER RESPONDENT AND MOTION REQUESTING A DECISION [DOCS. 40, 42, 47, 50]

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         On September 16, 2015, the undersigned dismissed the petition as untimely under 28 U.S.C. § 2244(d). On November 24, 2015, Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil Procedure § 60(b). (ECF No. 32.) On February 25, 2016, Petitioner filed a supplemental motion for reconsideration. (ECF No. 34.) On March 21, 2016, Petitioner filed a motion for a decision on the motion for reconsideration. (ECF No. 35.) The Court denied all three motions on March 24, 2016 as Petitioner did not present any new arguments that would entitle him to relief.

         On June 17, 2016 Petitioner filed a second motion to vacate the judgment. (ECF No. 37.) The Court denied the motion on September 27, 2016. (ECF No. 39.)

         On October 13, 2016, Petitioner filed a motion to Alter or Amend the Judgment under Fed.R.Civ.P. 59(e). (ECF No. 40.) Respondent did not file an opposition to the motion. As the Court has already ruled on the merits of the petition, the Court shall construe the filing as a motion to alter or amend the judgment under Federal Rules of Civil Procedure § 59(e) or a motion for reconsideration pursuant to Rule 60(b).

         A motion for reconsideration is treated as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e) if it is filed within the time limit set by Rule 59(e). United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992). Otherwise, it is treated as a motion pursuant to Fed.R.Civ.P. 60(b) for relief from a judgment or order. American Ironworks & Erectors Inc. v. North American Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A motion to alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e) "must be filed no later than 28 days after the entry of the judgment." 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 misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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