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Nguyen v. Giurbino

November 14, 2007

LINH N. NGUYEN, PETITIONER,
v.
GEORGE GIURBINO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

Pending before the Court is the Motion to Vacate Judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, filed by Petitioner Linh N. Nguyen. (Doc. # 34).

Background

On January 16, 2007, Petitioner Linh N. Nguyen ("Petitioner"), a state prisoner proceeding pro se, filed an Amended Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. section 2254 ("Petition"). (Doc. # 27). On June 7, 2007, United States Magistrate Judge William McCurine, Jr. issued a Report and Recommendation, recommending that the Petition be denied. (Doc. # 30). On July 31, 2007, the Court issued an Order adopting the Report and Recommendation and denying the Petition. (Doc. # 31).

On September 5, 2005, Petitioner filed a Motion to Vacate the Court's July 31, 2007 Order. (Doc. # 34). Petitioner filed a Declaration in support of the Motion to Vacate, swearing that he has never received a copy of the June 7, 2007 Report and Recommendation, and that he has inquired with the Mailroom Supervisor at the prison who informed Petitioner that in June, 2007, he only received "Legal Mail" from his brother. Petitioner moves to vacate the Court's July 31, 2007 Order, and requests the Court to issue an order that he be served with a copy of the July 7, 2007 Report and Recommendation, be given an opportunity to submit timely objections, and have the Court render a decision upon review of any objections submitted by Petitioner.

On September 13, 2007, Respondent filed a Response to the Motion to Vacate in which Respondent agreed that if in fact Petitioner did not receive a copy of the Report and Recommendation, he would be entitled to relief under Rule 60 of the Federal Rules of Civil Procedure. (Doc. # 36).

Discussion

Pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, a district court may grant a motion for relief from judgment when there is any reason not previously considered in Rule 60(b) that justifies granting relief from operation of the judgment. Fed. R. Civ. P. 60(b). A party merits relief under Rule 60(b)(6) if he demonstrates "extraordinary circumstances" prevented the party from taking timely action to prevent or correct an erroneous judgment. Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002). Relief under Rule 60(b)(6) "normally will not be granted unless the moving party is able to show both injury and that circumstances beyond its control prevented timely action to protect its interests." Id.

Petitioner contends that on or about August 9, 2007, he received the Court's July 31, 2007 Order adopting the Report and Recommendation and denying the Petition. Petitioner contends that he did not become aware of the Report and Recommendation until this date. Petitioner contends that upon becoming aware of that a Report and Recommendation was issued, he inquired with the Mailroom Supervisor of the prison who informed him that no "Legal Mail" had been delivered to him during June 2007, aside from mail from his brother. Petitioner contends that he did not file objections to the Report and Recommendation because he never received a copy of the Report and Recommendation.

Respondent does not dispute that if Petitioner never received a copy of the Report and Recommendation, and therefore had no opportunity to file objections thereto, he would be entitled to relief under Rule 60 of the Federal Rules of Civil Procedure.

After reviewing the record, the Court finds that Petitioner has demonstrated injury because he had no opportunity to file objections to the Report and Recommendation, and that his inability to file objections to the Report and Recommendation resulted from circumstances beyond his control. The Court concludes that Petitioner has demonstrated extraordinary circumstances sufficient to warrant relief from judgment because he never received a copy of the Report and Recommendation and was therefore unable to file objections.

Conclusion

IT IS HEREBY ORDERED that the Court GRANTS the Motion for Vacate Judgment (Doc. # 34). It is further ordered that the Court VACATES the Order adopting the Report and Recommendation (Doc. # 31) filed on July 31, 2007. Any party may file objections to the Report and Recommendation no later than Monday, December 17, 2007. Any party may file a reply to the objections to the Report and Recommendation no later than Monday, January 7, 2008. The Court directs the Clerk of the Court to serve Petitioner with a copy of this Order and the Report and Recommendation ...


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