(HC) Yocom v. Attorney General ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. YOCOM, No. 1:20-cv-01141-DAD-SAB (HC) 12 Petitioner, 13 v. ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 14 ATTORNEY GENERAL, (Doc. No. 18) 15 Respondent. 16 17 Petitioner Michael A. Yocom is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 19 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 20, 2020, the undersigned adopted the findings and recommendations 21 issued by the assigned magistrate judge (Doc. No. 8), dismissing petitioner’s petition for federal 22 habeas relief because petitioner’s direct appeal of his state court judgment of conviction is still 23 pending before the state appellate court. (Doc. No. 14.) Judgment was entered on November 20, 24 2020. (Doc. No. 15.) On December 4, 2020, petitioner appealed the court’s order to the Ninth 25 Circuit Court of Appeals (Doc. No. 19) and filed the pending motion for reconsideration of the 26 court’s order dismissing his petition. (Doc. No. 18). 27 ///// 28 ///// 1 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 2 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 3 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 4 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 5 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 6 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 7 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 8 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 9 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 10 Bishop, 229 F. 3d 877, 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 11 F.3d 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking 12 reconsideration under Rule 60, the moving party “must demonstrate both injury and 13 circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and 14 citation omitted). 15 “A motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, committed 17 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 18 raise arguments or present evidence for the first time when they could reasonably have been 19 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 20 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 21 original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or 22 different facts or circumstances are claimed to exist which did not exist or were not shown” 23 previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 24 not shown” at the time the substance of the order which is objected to was considered. 25 Here, petitioner’s motion does not identify any basis under Rule 60(b) upon which this 26 court should reconsider its finding that petitioner’s direct appeal of his state court judgment of 27 conviction is still pending before the state appellate court, requiring that his petition for federal 28 habeas relief be dismissed. Instead, petitioner merely restates the same arguments that he had 1 | asserted in his objections to the magistrate judge’s findings and recommendations. (Doc. No. 18 2 | at 1-3.) Petitioner simply has provided no basis under Rule 60(b) to support reconsideration of 3 | the court’s order dismissing his petition. 4 Accordingly, 5 1. Petitioner’s motion for reconsideration (Doc. No. 18) is denied; 6 2. This case shall remain closed; and 7 3. No further filings will be entertained in this closed case. 8 | IT IS SOORDERED. a 9 Li. wh F Dated: _ December 7, 2020 tn □ Soe 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28