Montalvo v. Baca ( 2021 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 ELIAS G. MONTALVO, Case No. 3:20-cv-00131-MMD-WGC 6 Petitioner, ORDER 7 v. 8 9 ISIDRO BACA, et al., 10 Respondents. 11 12 13 In this habeas corpus case, pro se Petitioner Elias G. Montalvo moves for 14 reconsideration of the dismissal of his action on statute of limitations grounds. (ECF No. 15 51.) The Court will deny the motion. 16 On January 6, 2021, the Court granted Respondents’ motion to dismiss and 17 dismissed this action. (ECF No. 48.) Judgment was entered that same date. (ECF No. 18 49.) Petitioner filed his motion for reconsideration (ECF No. 51) on January 13, 2021. 19 Respondents filed an opposition to that motion (ECF No. 54), and Montalvo replied (ECF 20 No. 55). 21 Federal Rule of Civil Procedure 60(b) provides for relief from a judgment where 22 one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable 23 neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or misconduct by the 24 adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or 25 discharged; it is based on an earlier judgment that has been reversed or vacated; or 26 applying it prospectively is no longer equitable; (6) any other reason justifying relief. See 27 Fed. R. Civ. P. 60(b); see also LR 59-1(a). Motions for reconsideration are disfavored, 1 necessary to explain intervening law or argue new facts. See LR 59-1(b). The movant 2 must state with particularity the points of law or fact overlooked or misunderstood by the 3 court, or the changes in legal or factual circumstances that may entitle the movant to 4 relief. See LR 59-1(a). 5 Montalvo does not show that there was any mistake of law or fact made by the 6 Court, or that any other circumstance warrants reconsideration. Montalvo repeats his 7 argument, made in his opposition to the motion to dismiss, that his procedurally barred 8 second state habeas action should be considered a “continuation” of his first state habeas 9 action (ECF No. 51 at 2), but, as is explained in the order dismissing the action (ECF No. 10 48 at 5), the law does not support that approach. The remainder of Montalvo’s argument 11 is essentially that he proceeded pro se in his state habeas actions, and that he did not 12 understand the law, believing that he had to continue to exhaust his claims in state court, 13 in his second state habeas action, before proceeding with his federal petition. (See ECF 14 No. 51 at 2-6.) But a pro se petitioner’s confusion or ignorance of the law is not, itself, a 15 circumstance warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 16 (9th Cir. 2006). The Court will deny Petitioner’s motion for reconsideration. 17 Notwithstanding the Court’s denial of a certificate of appealability (ECF No. 48 at 18 6), Montalvo may attempt to pursue an appeal by filing a timely notice of appeal in this 19 action in this Court; if he does so, the Ninth Circuit Court of Appeals will then determine 20 whether a certificate of appealability will be issued by that court. 21 It is therefore ordered that Petitioner’s Motion for Reconsideration (ECF No. 51) is 22 denied. 23 DATED THIS 1st Day of February 2021. 24 25 26 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 27