United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
January 22, 2018, this Court granted Respondents’
motion to dismiss Billy Cepero’s 28 U.S.C. § 2254
habeas corpus petition as time-barred (ECF No. 32), and
judgment was entered (ECF No. 33). Subsequently, Cepero filed
three motions, including a motion for reconsideration (ECF
Nos. 34, 36, 39). On November 5, 2018, the Court struck these
documents because Cepero filed them pro se despite
being represented by counsel (ECF No. 41).
same day the Court struck Cepero’s pro se
filings, counsel for Petitioner moved to withdraw (ECF No.
42). Counsel explains that he was retained by Cepero to file
a motion to reopen the case and to file an amended petition,
which he did. Counsel also litigated Respondents’
motion to dismiss. He states that he has fulfilled his
obligations to Cepero, notes that Cepero had filed pro
se documents, and seeks to withdraw. Good cause
appearing, the motion to withdraw is granted.
has not indicated any objection to his counsel’s
withdrawal. After the motion to withdraw was filed, Cepero
filed a motion requesting that, in light of his
counsel’s withdrawal, the pro se motions be
placed back on the docket (ECF No. 43). Good cause appearing,
the motion is granted. This Court’s order dated
November 5, 2018, striking the three motions, is vacated.
Cepero’s motion for extension of time to file a reply
in support of his motion to present additional supporting
evidence (ECF No. 39) is granted nunc pro tunc, as
he has since filed the reply.
Court now considers the motion for reconsideration (ECF No.
34). Cepero also filed a motion to present additional
evidence to support the motion for reconsideration (ECF No.
36). Respondents opposed both (ECF No. 35, 37), and Cepero
filed replies (ECF No. 38, 40).
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).
Rule 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 that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
otherwise vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
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 must 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 (9th Cir. 2001)
(quoting McDowell v. Calderon, 197 F.3d 1253, 1255
(9th Cir. 1999)).
in his motion for reconsideration, Cepero refers to the
amended judgment of conviction (ECF No. 34 at 15-17 (Ex. B to
the motion for reconsideration).) The amended judgment of
conviction was not part of the state-court record Petitioner
filed contemporaneously with his amended petition.
Petitioner, Respondents, and the Court apparently all failed
to take into account the amended judgment of conviction when
calculating the AEDPA statute of limitations for the purposes
of adjudicating the motion to dismiss. Cepero does not argue
in his motion for reconsideration that the amended judgment
of conviction affects the timeliness of his federal petition.
In any event, the result is the same. The amended judgment of
conviction was filed on December 10, 2012, and became final
on January 9, 2013. Cepero took no action until almost 18
months later when he filed a state postconviction habeas
petition in June 2014 (ECF No. 18-6 at 6 (Ex. K to the first
amended petition)) and then a federal habeas petition in
August 2014 (ECF No. 5). Thus, Cepero’s federal
petition was still untimely under the one-year AEDPA statute
of limitations period.
does not actually argue in his motion for reconsideration
that his petition was timely-filed or that he is entitled to
equitable tolling. He merely re-argues the merits of claims
regarding the calculation of jail credits and that his
counsel was ineffective regarding a plea offer. He presents
no new arguments and no basis for Rule 60(b) reconsideration.
Accordingly, the motion is denied.
also filed a motion to present additional supporting evidence
(ECF No. 36). Yet, the exhibits that he included are either
already part of the record in this case, or are documents
from his other state cases, or are printouts of docket sheets
from his state cases. Respondents point out that no part of
these exhibits constitutes newly discovered evidence that was
previously unavailable (ECF No. 37). Thus, the motion is
therefore ordered that counsel for Petitioner’s motion
to withdraw (ECF No. 42) is granted.
further ordered that Petitioner’s motion to place
pro se documents on the ...