(HC) Lipsey v. Pffifer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., Case No. 1:18-cv-01547-LJO-JDP 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 13 v. ECF No. 24 14 CHRISTIAN PFFIFER, 15 Respondent. 16 17 Petitioner Christopher Lipsey, Jr., a state prisoner without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2254. In his petition and amended petition, Petitioner sought habeas 19 relief prematurely, during the pendency of his state court trial for assault while incarcerated. 20 (ECF No. 1, 13). On August 23, 2019, this Court issued findings and recommendations that the 21 Court dismiss the petition due to lack of jurisdiction and deny Respondent’s motion to dismiss as 22 moot. (ECF No. 18.) These findings and recommendations were adopted on September 11, 23 2019, thereby dismissing the case. (ECF No. 20). On September 29, 2019, Petitioner was 24 convicted of assault in the state court proceedings. (ECF No. 24 at 3). On September 30, 2019, 25 Petitioner filed a motion for reconsideration, requesting that the instant petition be stayed pending 26 exhaustion of his state court claims. (ECF No. 22). Petitioner’s motion for reconsideration was 27 denied on October 7, 2019. (ECF No. 23). Petitioner now seeks reconsideration of the final 28 1 judgment a second time, requesting again that the instant petition be stayed pending exhaustion of 2 his state court claims. (ECF No. 24). 3 MOTION FOR RECONSIDERATION 4 Fed. R. Civ. P. 60(b) allows the Court to relieve a party from an order for “(1) mistake, 5 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 6 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 7 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 8 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 9 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 10 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 11 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 12 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 13 (internal quotation marks and citation omitted). Local Rule 230(j) requires Petitioner to show 14 “what new or different facts or circumstances are claimed to exist which did not exist or were not 15 shown upon such prior motion, or what other grounds exist for the motion.” 16 Here, Petitioner has failed to meet the requirements for granting a motion for 17 reconsideration under Fed. R. Civ. P. 60(b). In his motion for reconsideration (ECF No. 24), 18 Petitioner makes the same request made in his objections to the findings and recommendations 19 and his previous motion for reconsideration: that his habeas claim be stayed pending exhaustion 20 of his state court claims. (ECF No. 19, 22). Petitioner has not shown “surprise, or excusable 21 neglect;” he has not shown the existence of either newly discovered evidence or fraud; he has not 22 established that the judgment is either void or satisfied; and, finally, he has not presented any 23 other reasons justifying relief from judgment. Fed. R. Civ. P. 60(b). In addition, Petitioner has 24 not shown “new or different facts or circumstances.” Local Rule 230(j). Instead, Petitioner seeks 25 to have his prematurely filed petition stayed while he seeks state court habeas relief related to his 26 September 2019 assault conviction. Petitioner may bring new claims which arose after the filing 27 of the instant federal petition in a new federal petition after these claims are properly exhausted at 28 1 the state level. Petitioner may not, however, revive his dismissed petition through a motion for 2 reconsideration because he has failed to state adequate grounds under Fed. R. Civ. P. 60(b). 3 CONCLUSION 4 Based on the foregoing, IT IS HEREBY ORDERED that Petitioner’s motion for 5 reconsideration, filed on October 23, 2019, is DENIED. 6 IT IS SO ORDERED. 7 8 Dated: January 13, 2020 /s/ Lawrence J. O’Neill _____ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28