United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is before the court on petitioner
William Mitchell's motion for reconsideration of this
court's order granting respondents' motion to dismiss
in part and denying leave to amend the petition (ECF No. 40).
Respondents opposed (ECF No. 43).
August 16, 2017, this court granted respondents' motion
to dismiss in part, concluding that several portions of
ground 1 were unexhausted and dismissing ground 2 for failure
to state a claim for which federal habeas relief may be
granted (ECF No. 32). In that order, the court also denied
Mitchell leave to file an amended petition. He had sought
leave to amend to add a third ground asserting a claim of
ineffective assistance of state postconviction counsel. The
court denied leave to amend as futile because such a claim is
noncognizable in federal habeas corpus.
September 28, 2017, Mitchell filed a motion for
reconsideration of that order (ECF No. 40). Where a ruling
has resulted in final judgment or order, a motion for
reconsideration may be construed either as a motion to alter
or amend judgment pursuant to Federal Rule of Civil Procedure
59(e), or as a motion for relief from judgment pursuant to
Federal Rule 60(b). School Dist. No. 1J Multnomah County
v. AC&S, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993), cert. denied 512 U.S. 1236 (1994).
Fed.R.Civ.P. 60(b) the court may relieve a party from a final
judgment or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any
other reason justifying relief from the operation of the
to reconsider are generally left to the discretion of the
trial court. See Combs v. Nick Garin Trucking, 825
F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a
motion to reconsider, a party must set forth facts or law of
a strongly convincing nature to induce the court to reverse
its prior decision. See Kern-Tulare Water Dist. v. City
of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986),
aff'd in part and rev'd in part on other
grounds 828 F.2d 514 (9th Cir. 1987). Rule
59(e) of the Federal Rules of Civil Procedure provides that
any “motion to alter or amend a judgment shall be filed
no later than 28 days after entry of the judgment.”
Furthermore, a motion under Fed.R.Civ.P. 59(e) “should
not be granted, absent highly unusual circumstances, unless
the district court is presented with newly discovered
evidence, committed clear error, or if there is an
intervening change in the controlling law.” Herbst
v. Cook, 260 F.3d 1039, 1044 (9thCir. 2001),
quoting McDowell v. Calderon, 197 F.3d 1253, 1255
(9th Cir. 1999).
argues that this court misunderstood the claim that he sought
to add to his petition (ECF No. 40). He is incorrect; he
sought to add a claim that his state postconviction counsel
was ineffective for failing to raise the issue that his trial
counsel “suborned perjury” (see ECF No.
28-1, pp. 11-12). As the court explained, a claim of
ineffective assistance of state postconviction counsel is not
cognizable in federal habeas corpus. Mitchell now argues that
he intended to also add a claim that trial counsel suborned
perjury. The basis of this claim is Mitchell's allegation
that trial counsel knew Mitchell was under the influence of
medication and incapable of knowingly, intelligently and
voluntarily entering into the guilty plea agreement, but
trial counsel allowed Mitchell to indicate to the court that
he was proceeding knowingly, intelligently and voluntarily.
The gravamen of this claim is that trial counsel was
ineffective because he knew that Mitchell was under the
influence of medication at the time and did not knowingly and
voluntarily enter his guilty plea. This claim is already
before the court as ground 1(d) and shall be considered on
the merits (see ECF No. 32, pp. 4-5).
Mitchell has failed to make an adequate showing under either
Rule 60(b) or 59(e) that this court's order denying him
leave to amend his petition and granting the motion to
dismiss some grounds should be reversed.
court shall grant petitioner an additional thirty (30) days
to comply with this court's earlier order by (1)
informing this court in a sworn declaration that he wishes to
formally and forever abandon the unexhausted grounds for
relief in his federal habeas petition and proceed on the
exhausted grounds; OR (2) informing this court in a sworn
declaration that he wishes to dismiss this petition without
prejudice in order to return to state court to exhaust his
unexhausted claims; OR (3) filing a motion for a stay and
abeyance, asking this court to hold his exhausted claims in
abeyance while he returns to state court to exhaust his
unexhausted claims. Id.
IS THEREFORE ORDERED that petitioner's motion
for reconsideration (ECF No. 40) is DENIED.
IS FURTHER ORDERED that petitioner's motion for
order to conduct inquiry into subornation of perjury (ECF No.
39) is DENIED.
IS FURTHER ORDERED that petitioner's first and
second motions for extension of time to respond to this
court's order dated August 16, 2017 (ECF Nos. 42, 45) are
both GRANTED. Petitioner shall file his