Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff/Respondent, ) ) vs. ) ) ) Leslie C. Cohen, ) Defendant/Movant/Petitioner.) ) ) United States of America,

CR 01-99-PHX-JAT CV 04-933-PHX-JAT (JI) ORDER

Pending before the Court is Petitioner/Movant's Motion for Reconsideration of this Court's decision denying Petitioner/Movant's Petition for Habeas Relief (Doc. #285). While Petitioner calls his Motion one for "reconsideration," the Federal Rules of Civil Procedure do not actually contain a provision for reconsideration. In the conclusion of his motion, Petitioner seeks for this Court to grant his writ of habeas corpus pursuant to § 2255, which would necessarily require this Court to reverse its judgment (Doc. #284) denying habeas relief. Therefore, the Court will treat this as a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). On a motion for relief from judgment pursuant to Rule 60(b), the Court may grant such a motion for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of the adverse party; (4) a void judgment; (5) a satisfied, released or discharged judgment, or (6) "extraordinary circumstances" which would justifying relief. Fed. R. Civ. P. 60(b); see
Case 2:01-cr-00099-JAT Document 287 Filed 03/22/2007 Page 1 of 2

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Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)(citing Taylor v. Knapp, 871 F.2d 803, 805 (9th Cir. 1989)). In his motion, Petitioner/Movant does not meet or argue any of the above circumstances for relief. Instead, Petitioner/Movant basically reargues what he previously raised in his objections to the Report and Recommendation. While Petitioner premises many of his arguments in the motion on a theory that he is attempting to clarify what he believes the Court misunderstood in his objections,1 the Court has reviewed the motion for reconsideration and does not find it alleges any previously unaddressed arguments or any basis to set aside the judgment. Therefore, IT IS ORDERED that the motion for reconsideration (Doc. #285) is denied. DATED this 20th day of March, 2007.

For example, in his Motion, Petitioner argues that he should not be held to the cause and prejudice standard for procedurally defaulted claims because he raised these claims to the Court of Appeals and the Court of Appeals "ignored" them. Motion at 3. Even if Petitioner is correct, and the record belies this conclusion, then the claims raised before the Court of Appeals are subsumed in the judgment of the Court of Appeals. This Court does not have jurisdiction the reconsider the Court of Appeals decision because the decision is the law of the case. See Doc. #283, Page 2, Lines 23-26. -2Case 2:01-cr-00099-JAT Document 287 Filed 03/22/2007 Page 2 of 2

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