Vontressv.Nevens

UNITED STATES DISTRICT COURT DISTRICT OF NEVADANov 2, 2015
Case No. 2:14-cv-01342-GMN-CWH (D. Nev. Nov. 2, 2015)

Case No. 2:14-cv-01342-GMN-CWH

11-02-2015

GEORGE LESLIE VONTRESS, Plaintiff, v. D.W. NEVENS, et al., Defendants.


ORDER

This closed pro se habeas matter is before the court on petitioner Vontress's motion for reconsideration of the denial of a certificate of appealability (ECF No. 21).

Where a ruling has resulted in final judgment or order, a motion for reconsideration may be construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), or as a motion for relief from judgment pursuant to Federal Rule 60(b). School Dist. No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9 Cir. 1993), cert. denied 512 U.S. 1236 (1994).

Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason

justifying relief from the operation of the judgment.

Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds 828 F.2d 514 (9 Cir. 1987). Rule 59(e) of the Federal Rules of Civil Procedure provides that any "motion to alter or amend a judgment shall be filed no later than 28 days after entry of the judgment." Furthermore, a motion under Fed. R. Civ. P. 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 controlling law." Herbst v. Cook, 260 F.3d 1039, 1044 (9 Cir. 2001), quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9 Cir. 1999).

Here, this court dismissed the petition without prejudice as unexhausted, denied a certificate of appealability (ECF No. 6), and judgment was entered (ECF No. 7). This court then denied petitioner's motion for reconsideration as well as his motion to disqualify judge (ECF No. 15) and denied a certificate of appealability (ECF No. 19). Petitioner has again failed to make an adequate showing under either Rule 60(b) or 59(e) that this court's orders dated September 14, 2015 denying a certificate of appealability should be reversed.

In order to proceed with an appeal of this order, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-51 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id. This court has again considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The court will therefore deny petitioner a certificate of appealability.

IT IS THEREFORE ORDERED that petitioner's motion for reconsideration (ECF No. 21) is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

DATED: 2 November 2015.

/s/_________


Gloria M. Navarro


Chief Judge, United States District Court