United States District Court, D. Nevada
D. McKIBBEN UNITED STATES DISTRICT JUDGE
closed pro se habeas petition comes before the court
on petitioner's motion for rehearing and reconsideration
of the order denying motion for relief from judgment pursuant
to Fed.R.Civ.P. 60(b), or, in the alternative, for issuance
of a certificate of appealability. (ECF Nos. 11 & 12).
initiated this action pursuant to 28 U.S.C. § 2241
alleging that he was being unlawfully restrained in
connection with Second Judicial District Court No. CR96P1581.
(See ECF No. 1 at 19). In his petition, petitioner
argued that his detention was unlawful because the judgment
of conviction in CR95P1581 was void and invalid due to the
fact he had never been resentenced despite a state court
ruling in postconviction proceedings that petitioner was
entitled to a new sentencing hearing. This court concluded
that petitioner had not shown the judgment of conviction in
CR96P1581 was void, and thus as he was in custody pursuant to
a state court judgment of conviction and had previously
challenged the judgment of conviction in CR96P1581 in a
federal case decided on the merits, the petition was second
or successive and therefore required to be dismissed. (ECF
the court's decision, the petitioner obtained relief from
the Nevada Court of Appeals, which found there was no valid
judgment of conviction in CR96P1581 and therefore ordered the
state court to resentence petitioner. Petitioner moved this
court for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b) because the state courts had recognized
there was no valid judgment of conviction in CR96P1581. The
court denied petitioner's motion for relief, reasoning:
(1) that because petitioner is currently serving a sentence
of life without the possibility of parole in another criminal
case, he is not being unlawfully detained; (2) that even if
petitioner could assert a claim based on the delay in his
resentencing in CR96P1581, he would have to show prejudice
and that he could not do so; and (3) because petitioner was
actively litigating in the state courts whether they had the
authority to resentence him and the court would abstain from
interfering in those ongoing state court proceedings pursuant
to Younger v. Harris, 401 U.S. 37 (1971). (ECF No.
has now moved for reconsideration or, in the alternative, for
the grant of a certificate of appealability. For the reasons
that follow, petitioner's motions will be denied.
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. Absent 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).
“[M]otions for reconsideration are not the proper
vehicles for rehashing old arguments and are not intended to
give an unhappy litigant one additional chance to sway the
judge.” Sw. Circle Group, Inv. v. Perini Bldg.
Co., 2010 WL 4606999, at *1 (D. Nev. Nov. 5, 2010)
(internal citations and punctuation omitted). Accordingly, a
motion for reconsideration is properly denied where it
presents no new arguments. See Backlund v. Barnhart,
778 F.2d 1386, 1388 (9th Cir. 1985). At the same time, 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.
argues that the court's order denying his Rule 60(b)
motion for relief overlooked or misapprehended several facts.
petitioner asserts that the state court no longer has
jurisdiction to sentence him since he has expired all the
sentences imposed in the original judgment of conviction
entered in CR96-1581. The court does not agree that the state
courts lack jurisdiction to resentence him on this basis or
that such would result in Double Jeopardy violation.
petitioner argues that he is in custody as a pretrial
detainee in CR96P1581. The court has already considered and
addressed this argument in its prior order and will not
revisit the matter.
petitioner asserts that the court need not abstain pursuant
to Younger because there are extraordinary
circumstances, namely the state court lacks jurisdiction to
resentence him and his speedy trial rights have been
violated. As previously noted, the court disagrees that the
state courts lack jurisdiction to resentence petitioner. The
court also disagrees that the facts of the petition could
establish a speedy trial violation.
petitioner argues the court need not abstain because the
state courts had already decided that they have the
jurisdiction to resentence him. However, the state court
records clearly reflect that this matter was still being
litigated at the time the court entered its order denying
Rule 60(b) relief and is still being litigated as of this
(last accessed July 17, 2019) (motion for rehearing pending).
petitioner asserts that if this action is dismissed, he will
be without a remedy to challenge his judgment of conviction
because he will in all likelihood be sentenced to time served
and thus will not be able to file a petition while in
“custody.” The court has already rejected this
argument. Petitioner has had a full and fair opportunity to
challenge the judgment of conviction in CR96P1581 in the
state and federal courts and thus the dismissal of this case
will not deprive him of the opportunity to challenge the
judgment of conviction in CR96P1581.
petitioner argues that he is not being validly detained
because his life without parole sentence is not final; he
argues that a second amended judgment of conviction was
entered in that case and is currently on appeal. The court
does not agree. That petitioner is appealing the judgment of
conviction in his other case does not mean that he is being
unlawfully detained in that case -- now or at any point
court has further considered the arguments petitioner has
raised, with respect to whether they meet the standard for
issuance of a certificate of appealability, and concludes
that none does. Accordingly, ...