No. C 09-0268 RMW (PR)
ORDER DENYING MOTION FOR RECONSIDERATION (Docket No. 35)
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the briefs and the underlying record, the court concluded that petitioner was not entitled to relief based on the claims presented and denied the petition on August 2, 2010. (Docket No. 23.) On October 9, 2012, the United States Court of Appeal denied petitioner's request for a certificate of appealability. Petitioner also filed a petition for certiorari and a petition for rehearing with the Unites States Supreme Court. Both were denied. (Docket Nos. 32 and 34.) On July 17, 2014, petitioner filed the current motion to set aside default judgment. (Docket No. 35.)
The court construes petitioner's motion as a motion for relief from judgment, pursuant to Federal Rule of Civil Procedure 60(b). Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). Although couched in broad terms, subparagraph (6) requires a showing that the grounds justifying relief are extraordinary. Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).
Petitioner does not make a showing of mistake, inadvertence, surprise or excusable neglect. He does not set forth any newly discovered evidence, fraud, or any grounds for finding that the judgment is void or has been satisfied. Nor does he set forth any other reason justifying relief. Rule 60(b)(6) affords courts the discretion and power "to vacate judgments whenever such action is appropriate to accomplish justice." Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009).
In the present motion, filed four years after this court entered judgment against petitioner, petitioner argues that the judgment should be set aside because he believes that the prosecutor presented false evidence at his trial and committed prosecutorial misconduct. Petitioner has not demonstrated extraordinary circumstances. Petitioner is merely rearguing the claims that he presented in his petition in 2010.
Accordingly, the motion for reconsideration is DENIED. No further filings shall be accepted in this closed case.
This order terminates docket number 35.
IT IS SO ORDERED. DATED: 9/24/14
RONALD M. WHYTE
United States District Judge
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 24, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Lanare Wise T76040
P.O. Box 290066
Represa, CA 95671-0066
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk