United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE
pro se habeas petition comes before the Court on
petitioner's motion for reconsideration. (ECF No. 24).
Respondents have opposed (ECF No. 25). Petitioner has not
replied, and the time for doing so has expired.
highly unusual circumstances, the court should grant a motion
for reconsideration only where: (1) it is presented with
newly discovered evidence; (2) it has committed clear error
or the initial decision was manifestly unjust; or (3) there
has been an intervening change in controlling law. Nunes
v. Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004); Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000); Sch. Dist. No. 1J, Multnomah County, Or.
v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A
motion for reconsideration “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Kona, 229 F.3d at 890. “A
party seeking reconsideration . . . must state with
particularity the points of law or fact that the court has
overlooked or misunderstood. Changes in legal or factual
circumstances that may entitle the movant to relief also must
be stated with particularity.” L.R. 59-1.
order of May 13, 2019, the Court found that petitioner failed
to exhaust any of his claims before the state's highest
court. (See ECF No. 23; Ex. 57). In moving for
reconsideration, petitioner argues that he cited a plethora
of federal cases in his appellate brief to the Nevada Supreme
Court and because citation to federal cases is sufficient to
exhaust claims, he in fact did exhaust his claims.
Petitioner's argument is without merit.
petitioner did cite many federal cases in his appellate brief
to the Nevada Supreme Court, not one involved any of the
claims presented in the instant federal habeas petition, that
is, a claim of due process, equal protection, or cruel and
unusual punishment. (ECF No. 7 at 6-8); see King Cty. v.
Travelers Indem. Co., No. C14-1957 MJP, 2015 WL 1867098
(W.D. Wash. Apr. 23, 2015); Univ. of Texas Sw. Med. Ctr.
v. Nassar, 570 U.S. 338 (2013); Hillman v.
Maretta, 569 U.S. 483 (2013); Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320 (2006);
Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ.,
550 U.S. 81 (2007); In re First T.D. & Inv.,
Inc., 253 F.3d' 520, 524 (9th Cir. 2001); In re
Weilet, 530 B.R. 830 (Bankr. E.D. Cal. 2015); Lamie
v. U.S. Tr., 540 U.S. 526 (2004); Andrus v. Glover
Const. Co., 446 U.S. 608 (1980); Pac Re 5-AT v.
Amtrust N. Am., Inc., No. CV-14-131-BLG-CSO, 2015 WL
2383406 (D. Mont. May 13, 2015); Util. Air Regulatory
Grp. v. E.P.A., 573 U.S. 302 (2014); Dep't of
Commerce v. U.S. House of Representatives, 525 U.S. 316
(1999) (cited in order cited in petitioner's state
appellate brief). Rather all were cited in connection with
petitioner's arguments on statutory interpretation. As
respondents correctly argue, while citation of federal cases
can serve to exhaust a claim, the federal case must pertain
to the claim petitioner seeks to exhaust. See Castillo v.
McFadden, 399 F.3d 993, 999 (9th Cir. 2005)
(“[C]itation of a relevant federal constitutional
provision in relation to some other claim does not satisfy
the exhaustion requirement.”) As none of the federal
cases petitioner cited pertained to the claims he raises
here, citation of those cases did not exhaust
petitioner's claims in this matter.
being no other basis for reconsideration offered and the only
basis offered being without merit, the motion for
reconsideration will be denied.
accordance with the foregoing, IT IS THEREFORE ORDERED that
petitioner's motion for reconsideration (ECF No. 24) is
FURTHER ORDERED that petitioner will have fifteen days from
the date of entry of this order to elect how he would like to
proceed on his unexhausted petition in accordance with the
Court's order of May 13, 2019. Failure to do so will
result in the dismissal ...