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Maurice Cook v. Warden

February 6, 2012

MAURICE COOK, PETITIONER,
v.
WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On February 18, 2011, this action was dismissed without prejudice. (Dkt. No. 7.) The court found that because petitioner previously filed an application for a writ of habeas corpus challenging the 2003 conviction, the instant petition is successive, and petitioner must seek leave from the United States Court of Appeals for the Ninth Circuit to allow the district court to consider the application. (Id. at 2.)

Petitioner now seeks relief from the judgment, Fed. R. Civ P. 60(b)(6), claiming that he did not receive certain filings in his prior habeas action (2:06-cv-2110 MMS),*fn1 and that he filed the instant petition because he thought he could file a second writ to add additional issues not included in the initial petition. (Dkt. No. 9 at 4.) Petitioner claims it was not until he received the February 18, 2011 ruling that he became aware of the April 7, 2009 ruling in his prior case, and that because he did not receive the substantive ruling in the prior case, he was deprived of an opportunity to (a) file objections, if findings and recommendations issued; or (b) file an appeal. Petitioner provides documentary evidence to support his claims. (Dkt. No. 9 at 10-55.)

Petitioner seeks relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Rule 60(b) provides, in pertinent part:

(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; . . .

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Petitioner's motion is unavailing. As noted in this court's February 18, 2011 order, petitioner must seek permission from the Ninth Circuit to file a second petition for writ of habeas corpus. (Dkt. No. 7.) Because petitioner must obtain the Circuit's permission prior to filing in the district court, this court can offer petitioner no relief.

Moreover, if petitioner seeks relief concerning his prior habeas petition, he must seek relief in the prior case.*fn2 This court does not have jurisdiction to address petitioner's claims raised in Case No. 2:06-cv-2110 MMS, or to grant petitioner relief as to procedural issues in the prior case. However, the court will direct the Clerk of Court to send petitioner a copy of the April 7, 2009 order and judgment issued in Case No. 2:06-cv-2110 MMS.

Accordingly, petitioner's motion to vacate the judgment in the instant case is denied.

Finally, this court finds that petitioner fails to make the requisite showing that jurists of reason would find it debatable whether this was correct in its procedural ruling. Slack

v. McDaniel, 529 U.S. 473 (2000). Thus, the court declines to issue the certificate of appealability ...


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