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Chapman v. Montgomery

United States District Court, N.D. California

June 2, 2017

KENNETH CHARLES CHAPMAN, Petitioner,
v.
WARREN L. MONTGOMERY, Warden, Respondent.

          ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION; AND DENYING HIM LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This federal habeas corpus action, now closed, was filed pursuant to 28 U.S.C. § 2254 by Petitioner, a pro se state prisoner who challenged his 2009 conviction and sentence rendered in the Santa Clara County Superior Court. Petitioner was convicted of two counts of second degree robbery and two counts of assault with a deadly weapon, stemming from a December 17, 2007 incident involving Senorino Organez and Mike Nguyen, who were working as loss prevention agents at Wal-Mart Stores, Inc. On January 17, 2017, the Court denied the federal habeas petition, declined to issue a Certificate of Appealability, and entered judgment in favor of Respondent. Dkts. 37, 38.

         Before the Court is Petitioner's “Motion to Alter or Amend Judgment, ” which will be construed as his motion for reconsideration. Dkt. 39. Specifically, Petitioner moves for reconsideration of the Court's January 17, 2017 Order, presumably pursuant to either Rule 59(e) or 60(b) of the Federal Rules of Civil Procedure. Respondent has filed an opposition. Dkt. 45. Also before the Court is Petitioner request to proceed in forma pauperis on appeal. Dkt. 42.

         For the reasons outlined below, Petitioner's motion for reconsideration and request to proceed in forma pauperis on appeal are DENIED.

         II. DISCUSSION

         A. Motion for Reconsideration

         Where, as here, the Court's ruling has resulted in a final judgment or order, a motion for reconsideration may be based either on Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. As of 2009, the Federal Appellate Rule 4's deadline to file a motion for reconsideration under either Rule 59(e) or Rule 60(b) is twenty-eight days. See Classic Concepts, Inc. v. Linen Source, Inc., 716 F.3d 1282, 1285 (9th Cir. 2013). Petitioner's present motion for reconsideration was filed within the twenty-eight day period, and it is therefore timely under both rules.

         A motion for reconsideration under Rule 59(e) “‘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 law.'” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). A district court does not commit clear error warranting reconsideration when the question before it is a debatable one. See Id. at 1256 (district court did not abuse its discretion in denying reconsideration where question whether it could enter protective order in habeas action limiting Attorney General's use of documents from trial counsel's file was debatable).

         Meanwhile, under Federal Rule of Civil Procedure 60(b), a party may seek relief from a judgment and to re-open his case in limited circumstances. The Rule provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

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 ...

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