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White v. Kramer

December 15, 2008

JACKIE DON WHITE, PETITIONER,
v.
M.C. KRAMER, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel proceeding on a motion to have his federal habeas petition reinstated. See Fed. R. Civ. P. 60(b). For the reasons explained below, the motion must be denied.

I. Procedural History

On April 21, 2000, petitioner filed an application for a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner then moved for voluntary dismissal of the petition in order to exhaust additional claims in state court. Docket No. 25. The motion was granted and the petition was dismissed on July 27, 2001.

Although petitioner has proceeded in pro se in this action, he retained an attorney in September 2000 for purposes of his state proceedings. Resp.'s Opp'n at 4:16-17; In re Jackie Don White, 121 Cal.App.4th 1453, 1464 (2004). In December 2003, through his attorney petitioner filed a petition for habeas relief in the Third Appellate District of California. In re Jackie Don White, 121 Cal.App.4th at 1472. In an opinion dated September 1, 2004, that court found that the attorney had filed a patently frivolous and contemptuous petition. Id. at 1477, 1480.*fn1

On September 5, 2007, petitioner filed the instant motion, asking that the court reinstate his petition because his attorney incorrectly advised him to dismiss this action and because his attorney also filed a frivolous habeas petition on behalf of petitioner in the state appellate court.

II. Rule 60(b) Standard

Rule 60(b) provides several bases for relief from judgment or order:

(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 misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...


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