United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE
court granted respondents' motion to dismiss James
Matlean's 28 U.S.C. § 2254 petition in part (ECF No.
28). The court concluded that several claims did not relate
back to the second-amended petition and thus were subject to
dismissal as time-barred. Now before the court is
Matlean's motion for reconsideration of that order (ECF
No. 30). Respondents opposed (ECF No. 32), and Matlean
replied (ECF No. 33).
courts possess inherent authority to reconsider and rescind
interlocutory orders while a case remains pending. See
Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001). Changes in legal or factual circumstances,
newly discovered evidence, clear error, a manifestly unjust
decision by the court, or an intervening change in
controlling law may warrant reconsideration. LR 59-1(a).
However, motions for reconsideration are disfavored. LR
urges the court to reconsider its decision that several
claims in the third-amended petition do not relate back and
are untimely (ECF No. 30). Matlean reasserts his argument
that the claims in his second-amended petition need only
relate back to either his original pro se filing or
his pro se first-amended petition.
forth in this court's order granting the motion to
dismiss in part and in the original order directing Matlean
to amend, Matlean's first filing failed to set forth any
grounds for federal habeas relief. This court specifically
Petitioner's filing is insufficient. He must set forth
each ground for federal habeas relief in the space provided
on this court's form and otherwise complete the form. The
court shall not sort through the more than 100 pages in an
attempt to discern what claims petitioner wishes to raise.
Moreover, petitioner has not indicated what grounds he
asserted in his still-pending second state postconviction.
Accordingly, petitioner shall, within forty-five days of the
date of this order, file an amended petition, on the
court's form, that sets forth each ground for which he
seeks federal relief (ECF No. 5, pp. 1-2).
In response to that order, Matlean timely filed his
first-amended petition (ECF No. 8).
argues that his original petition sufficiently incorporated
the attachments he included, and therefore, that claims in
his third-amended petition may relate back to either his
original or first-amended petition. Habeas Rule 2 prescribes
that a petitioner must use the court-required form or
substantially follow the form and that the petition must
specify all grounds for relief available to the petitioner
and the facts supporting each ground. The Supreme Court has
recognized an exception when the habeas petition expressly
incorporates attached material by reference. Dye v.
Hofbauer, 546 U.S. 1 (2005). In Dye, the Court
concluded that incorporation was sufficient because the
habeas corpus petition “made clear and repeated
references to an appended supporting brief, which presented
[petitioner's] federal claim with more than sufficient
particularity.” Id. at 4.
argues in the motion for reconsideration that the subsequent
Ninth Circuit Court of Appeals July 2018 opinion in Ross
v. Williams supports his position. 896 F.3d 958. In
Ross, the petitioner used this court's form, but
wrote substantially the same thing under each ground:
was ineffective for failing to:
1) Secure a speedy trial
2) Failed to review evidence and adequately prepare
3) Failed to file pretrial motions
4) Failed to argue the prejudice of evidence lost prior ...