UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 12, 2010
JAIRO FERNANDO MIER-CARDENAS, PETITIONER,
NEIL H. ADLER, WARDEN RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION TO SET ASIDE JUDGMENT [Doc. 7]
On November 5, 2008, the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 was dismissed without prejudice for failure to exhaust the administrative remedies.*fn1 (Court Doc. 5.) Judgment was entered this same date. (Court Doc. 6.)
Now pending before the Court is Petitioner's motion to set aside the judgment entered in this case.*fn2 Rule 60 of the Federal Rule of Civil Procedure governs the reconsideration of final orders of the district court. The rule permits a district court to relieve a party from a final order or judgment on the grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . ; or (6) any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). The motion for reconsideration must be made within a reasonable time, in any event, "not more than one year after the judgment, order, or proceeding was entered or taken." Id.
Petitioner argues "that extraordinary circumstances are present that serious question the integrity of this Court's judgment that if not corrected would result in a 'judicial travesty.'" (Motion, at 2.) Petitioner contends that exhaustion would be futile in this case because his administrative appeal process was complete on January 15, 2009. (Id. at 3.) However, Petitioner overlooks the fact that the instant petition was filed on October 23, 2008, and dismissed on November 5, 2008, as Petitioner was in the process of exhausting his administrative remedies. Indeed, the Court informed Petitioner that "the evidence submitted by [him] indicates that the prison is currently investigating his claim regarding the custody credits; therefore, exhaustion should not be waived in this instance. It is possible that upon completion of the investigation, Petitioner may be granted the relief requested by the prison, mooting any review in this Court." (Court Doc. 5, Order, at 4.) Petitioner was specifically advised that he "may re-file his petition once the administrative remedies have been exhausted." (Id.)
Therefore, to the extent Petitioner believes that his administrative remedies have been exhausted, his remedy is to re-file a new section 2241 petition- not reconsideration and reinstatement of this action. Accordingly, Petitioner's motion for reconsideration is HEREBY DENIED.
IT IS SO ORDERED.