ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By this action, petitioner challenges a judgment of conviction entered against him in the Sacramento County Superior Court in 2005 for resisting an executive officer by use of force and violence in violation of California Penal Code § 69. Several matters are now pending before the court and will be addressed below.
On December 9, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus in the United States District Court for the Central District of California (hereinafter "Central District"). On January 8, 2010, the Central District transferred the case to this court.
On January 29, 2010, this court issued findings and recommendations recommending dismissal of this action as barred by the one year statute of limitations codified at 28 U.S.C. § 2244(d). (Doc. No. 10.) On February 22, 2010, petitioner filed objections to the findings and recommendations. (Doc. No. 11.) In those objections, petitioner argued that he was entitled to equitable tolling of the limitations period for the filing of a federal habeas application because he had received ineffective assistance of appellate counsel and because he was actually innocent of the charges upon which he was convicted. (Id.) On June 17, 2010, this court vacated the January 29, 2010 findings and recommendations and directed respondent to file a response to the petition. (Doc. No. 14.)
On August 16, 2010, respondent moved to dismiss the pending federal habeas petition as time-barred. (Doc. No. 18.) By order filed October 18, 2010, the parties were directed by the court to file supplemental briefing addressing whether petitioner was in custody on his 2005 judgment of conviction at the time that he commenced this federal habeas action. . (Doc. No. 21.) Both parties filed supplemental briefing as directed. In his supplemental brief, respondent added a request to dismiss the action for lack of jurisdiction, contending that petitioner was not in custody on his 2005 judgment of conviction when this federal habeas action was filed. (Doc. No. 25.)
On December 20, 2010, this court issued an order finding, inter alia, that petitioner was, at the time this federal habeas action was filed, in custody pursuant to a 2009 judgment of conviction entered against him that had been enhanced by his 2005 conviction. (Doc. No. 29.) Good cause appearing, the court referred the matter to the Office of the Federal Defender for this district to advise petitioner concerning issues related to second or successive petitions and granted petitioner forty-five days to request voluntary dismissal of this action without prejudice in light of that finding. (Id.) On January 21, 2010, petitioner filed supplemental briefing. (Doc. No. 30.) He did not, and has not, sought the voluntary dismissal of this action.*fn1
On February 11, 2011, this court issued findings and recommendations recommending that this action be construed as a challenge to petitioner's 2009 judgment of conviction as enhanced by his 2005 conviction, that respondent's motion to dismiss be denied, and that respondent be granted an additional thirty days in which to file a further motion to dismiss or an answer to the claims raised in the petition. (Doc. No. 30.) Petitioner filed objections to those findings and recommendations. (Doc. No. 32.) On March 10, 2011, the district court adopted the February 11, 2011 findings and recommendations in full. (Doc. No. 35.)*fn2
On April 4, 2011, petitioner filed a motion for reconsideration of the assigned district judge's March 10, 2011 order. (Doc. No. 39.) On April 5, 2011, respondent filed a motion to dismiss this action. (Doc. No. 38.) On April 7, 2011, petitioner filed a document styled as a motion for an order of contempt. (Doc. No. 41.) On May 2, 2011, petitioner filed a motion for an extension of time to file an opposition to the motion to dismiss. (Doc. No. 43.) Petitioner filed his opposition to the motion to dismiss on May 9, 2011, an amendment to the opposition on May 13, 2011, and a second amendment to his opposition on May 20, 2011. (Doc. Nos. 44, 46 & 48.) On October 13, 2011, petitioner filed a motion to supplement his opposition once again. (Doc. No. 51.)
On September 15, 2011, petitioner filed a motion to amend his habeas petition. (Doc. No. 50.) Petitioner then filed a proposed first amended petition on November 18, 2011.
(Doc. No. 52.) Finally, on November 28, 2011, petitioner filed a second motion for reconsideration of the assigned district judge's March 10, 2011 order construing this action as a challenge to petitioner's 2009 judgment of conviction as enhanced by his 2005 conviction. (Doc. No. 53.)
I. Petitioner's Motions for Reconsideration
By both of his motions for reconsideration, petitioner contends that the court's March 10, 2011 order must be set aside because it is based on an error of fact, namely, that petitioner was not in custody on his 2005 judgment of conviction at the time he filed this federal habeas action. Petitioner contends that he was in custody on that 2005 conviction, as well as his 2009 judgment of conviction when he filed this habeas action, because his 2005 judgment of conviction had not been discharged at that time. With the second motion for reconsideration, petitioner presents evidence that his 2005 case was not "discharged" until November 14, 2010. See Exhibit filed December 5, 2011. (Doc. No. 54.)
Federal Rule of Civil Procedure 60(b) authorizes a court, "[o]n motion and just terms," to relieve a party from a court order on the grounds of, inter alia, mistake, excusable neglect, newly discovered evidence that could not have been timely discovered, or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(1), (2), (6). See also Rule 12, 28 U.S.C. foll. § 2254; Local Rule 230(j) (E.D.Cal.). For the reasons set forth below, this court finds that the ...