Leslie E. Carter v. J. Stainer

145 F.3d 1336

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Leslie E. CARTER, Petitioner-Appellant,
v.
J. STAINER, Respondent-Appellee.

No. 97-15091.
D.C. No. CV-91-00087-GEB.

United States Court of Appeals, Ninth Circuit.

Submitted April 20, 1998.**
Decided April 27, 1998.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding.

Before BRUNETTI, RYMER, and T.G. NELSON, Circuit Judges.

1

MEMORANDUM*

2

Leslie E. Carter, a California state prisoner, appeals pro se the district court's denial of his Fed.R.Civ.P. 60(b) motion for reconsideration of the district court's order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir.1989), and we affirm.

3

Even if we were to assume Carter's Rule 60(b) motion was cognizable, it lacked merit. In his Rule 60(b) motion, Carter stated that he was objecting to the magistrate judge's recommendation. He then restated the facts and arguments underlying his claims in his initial habeas petition. Because these facts and arguments neither contradict nor undermine the magistrate judge's findings and recommendation that the petition be denied, the district court did not abuse its discretion in ruling that sufficient grounds for setting aside the judgment were not shown. See Rodriguez v. Southern Pac. Transp. Co., 587 F.2d 980, 981 (9th Cir.1978). To the extent Carter's motion included the claim that habeas counsel was ineffective in preparing the habeas petition or for failing to file objections to the magistrate judge's report, it similarly failed to state a sufficient ground for relief. There is no constitutional right to effective counsel during habeas corpus proceedings. See Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993).

4

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3