The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on petitioner, Andre Ramon Craver ("petitioner"), motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). For the reasons set forth herein, petitioner's motion is DENIED.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 12, 2006. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 26, 2007, the magistrate judge filed Findings & Recommendations ("F&Rs"), recommending that (1) petitioner's motion for a stay and abeyance order to allow him to exhaust unexhausted claims be denied; and (2) petitioner's claims be denied on the merits. After reviewing petitioner's objections, the court adopted the F&Rs and entered judgment on February 5, 2008. On February 15, 2008, petitioner filed a Notice of Appeal and a Request for Certificate of Appealability, which was denied by the court on February 28, 2008.
On June 10, 2010, the Ninth Circuit denied petitioner's application for authorization to file a second habeas corpus petition in the district court, and noted that no petition for rehearing or motion for reconsideration "shall be filed or entertained in this case." On November 10, 2008, the Ninth Circuit denied petitioner's request for a Certificate of Appealability and denied all outstanding motions. On March 10, 2009, the Ninth Circuit again denied petitioner's application to file a second or successive habeas corpus petition, noting that petitioner had not made a prima facie showing that either (1) the claim relied on a new rule of constitutional law; or (2) the factual predicate for the claim was material and could not have been discovered previously through the exercise of due diligence. The court also noted that no petition for rehearing or motion for reconsideration was to be filed or entertained.
On April 27, 2009, the Supreme Court denied petitioner's petition for writ of certiorari.
On July 9, 2010, petitioner filed a motion for relief from judgment in this court, arguing that he only discovered facts relating to his ineffective assistance of counsel claims on January 31, 2010. Specifically, petitioner contends that he received notice of facts contained in his co-defendant's confession through an unpublished decision of the state appellate court, which was filed November 24, 2004, but that he did not receive until January 2010.
Rule 60(b) of the Federal Rules of Civil Procedure provide that "on motion and just terms, the court may relieve a party... from final judgment... for," inter alia, "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)" or "any other reason that justifies relief." Where a party moves for motion for relief from judgment on the basis of newly discovered evidence, such a motion must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. R. Civ. Proc. 60(c).
In this case, petitioner filed his motion pursuant to Rule 60(b) on July 9, 2010, more than a year after judgment was entered in this case on February 5, 2008. As such, to the extent petitioner's claim is based solely upon his contention that he discovered new evidence in January 2010, petitioner's motion is untimely.
Moreover, even if the motion was timely, petitioner's motion fails on the merits. First, there is no evidence or argument to support the conclusion that petitioner could not have discovered the facts relating to his co-defendant's confession with reasonable diligence. The confession that petitioner contends was "tantamount to a defense" was made at some point between the commission of the crime on September 14, 2001 and prior to the criminal trial in 2003. Further, the appellate decision was filed on November 24, 2004, well before the habeas petition at issue was filed in federal court. Second, the appellate decision does not add further strength to petitioner's ineffective assistance of counsel claim with respect to trial counsel. Even assuming such claims are properly exhausted, petitioner fails to meet his burden in demonstrating that, absent any assumed deficiency in counsel's performance, it is reasonably probable the verdict would have been more favorable to defendant.
Moreover, to the extent petitioner seeks to reargue his position regarding his ineffective assistance of counsel claims against counsel Franco, the appellate decision presents no new evidence or argument. The arguments made by petitioner have been considered and rejected by this court, and the Ninth Circuit denied the application for a certificate of appealability. Further, petitioner offers no other basis under Rule 60(b) for relief from judgment on this issue.
Accordingly, petitioner's motion for relief from judgment is DENIED.