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Howard v. California Dep't of Corrections

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 16, 2010

ANDREE JUAN HOWARD JR., PETITIONER,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PETITIONER'S MOTION FOR COPIES OF DOCUMENTS [Doc. 12]

Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 7, 2009. On August 12, 2009, the Court dismissed the petition with leave to amend. On August 17, 2009, Petitioner filed an amended petition on his own initiative and not in response to the Court's August 12, 2009 order.

On August 24, 2009, Petitioner filed a notice of change of address. Consequently, on September 24, 2009, the Court re-served the August 12, 2009, dismissal order on Petitioner at his new address of record. Petitioner failed to respond to the Court's order. On November 9, 2009, the Court dismissed the action for failure to comply with a court order and judgment was entered.

On November 30, 2009, Petitioner filed a motion for copies of documents and notice of change of address. Petitioner claims that he never received the Court's order advising him that the case would be dismissed if he did not comply with the order.

The court construes Petitioner's motion to be a request made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 60(b) 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.

However, the record is clear that the Court served its August 12, 2009, order on Petitioner at both his prior and current address of record based on the information supplied by Petitioner. Any claim to the contrary must be rejected. Service at the parties current address of record is sufficient. Pursuant to Local Rule 182(f) each party is under a continuing duty to inform the Court of any change of address. Absent such notice, service of documents at the prior address of record of the party is effective service. Local Rule 182(f).

Based on the foregoing, it is HEREBY ORDERED that Petitioner's motion for reconsideration is DENIED.

IT IS SO ORDERED.

20100816

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