FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner with counsel proceeding on a motion to vacate the judgment entered on July 5, 2006. See Fed. R. Civ. P. 60(b). For the reasons explained below, the motion must be denied.
Petitioner, at the time without counsel, filed this application for a writ of habeas corpus on November 8, 2005. See 28 U.S.C. § 2254. He filed an amended petition on December 2, 2005. Respondent moved to dismiss on the ground that petitioner failed to exhaust available state remedies with respect to some of his claims. Petitioner conceded that he failed to exhaust two claims, and consented to dismissal of the action without prejudice. The magistrate judge then assigned to the case issued finding and recommendations recommending that the motion to dismiss be granted.
The finding and recommendations noted that petitioner did not seek to invoke the stay-abeyance procedure permitted under Rhines v. Weber, 125 S.Ct. 1528 (2005). The magistrate judge also explained that petitioner could file an amended petition containing only the exhausted claims, and stated that a one-year limitations period applied to actions brought by state prisoners seeking habeas relief in federal court. Petitioner did not object to the findings and recommendations for dismissal. Therefore, on July 5, 2006, the district judge adopted the findings and recommendations, granted respondent's motion and dismissed the action, and judgment was entered.
On August 9, 2006, petitioner, through counsel, filed another petition for a writ of habeas corpus, McKnight v. Felker, Case No. Civ. S-06-1749 MCE KJM P. Respondents moved to dismiss that newly filed case (No. 06-1749 MCE KJM P) on the ground that the application was untimely. Curiously, in addition to opposing that motion petitioner, through counsel, filed on April 23, 2007, a pleading styled "Motion to Reinstate Petition After Dismissal" requesting that the court in the newly filed case enter an order pursuant to Fed. R. Civ. P. 60(b) vacating the judgment that had been entered in this case (No. 05-2262 LKK EFB P). The magistrate judge assigned to the later filed action, Case No. Civ. S-06-1749 MCE KJM P, denied the Rule 60(b) motion on the ground that petitioner failed to make any showing that the court could grant the relief sought. The order stayed the action on the condition that petitioner seek relief in the action in which the judgment was entered, i.e., this case.
On January 17, 2008, petitioner through counsel filed a Rule 60(b) motion for relief from judgment entered on July 5, 2006. The issue petitioner confronts here is how he will deal with the one year, jurisdictional limitations period for filing the Rule 60(b) motion.
The court heard oral argument on the motion on February 20, 2008. As discussed below, the court noted at that hearing that although no Ninth Circuit precedent has addressed the question presented by petitioner's argument here, the Seventh Circuit has in Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006). The court gave the parties additional time to submit supplemental briefs discussing the application of Arrieta to this case. Those briefs have been filed and the court issues the following findings and recommendations.
II. Standards Applicable to this Motion
Rule 60(b) provides several bases for relief from judgment:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or ...