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Rufus Harty Kelsaw, Iv v. Bob Horel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 8, 2012

RUFUS HARTY KELSAW, IV,
PETITIONER,
v.
BOB HOREL, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Kelsaw's pro se petition for writ of habeas corpus was denied and judgment entered on November 20, 2010. Kelsaw filed a timely notice of appeal of the decision. On January 13, 2011, his appeal was processed to the United States Court of Appeals for the Ninth Circuit. Subsequently, on December 2, 2011, he filed a Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b)(1) and (b)(3) alleging "Mistake, Inadvertence, Fraud, and Misrepresentation." Respondent's opposition to the motion is also before the Court.

Kelsaw's motion for relief from judgment is untimely. A motion under Rule 60(b)(1) or (b)(3) must be filed within a reasonable time and in no event more than a year after entry of judgment. See Fed. R. Civ. P. 60(c)(1); Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Here, Kelsaw's motion was filed just over a year after entry of judgment and he offers no explanation to justify the unreasonable delay.

Moreover, the motion is substantively without merit. Kelsaw fails to allege any particular "mistake, inadvertence, surprise, or excusable neglect" under Fed. R. Civ. P. 60(b)(1) or any specific "fraud" under subsection (b)(3). Kelsaw merely asserts that the Court has jurisdiction to reconsider its previous ruling and summarily asks the Court to do so by citing the text of Rule 60(b)(1) and (b)(3). His "naked, conclusory allegation, without a statement of underlying facts which tends to support such an allegation," is "insufficient" to satisfy his burden as the moving party to prove the existence of a justification for Rule 60(b) relief. SeeCassidy v. Tenorio, 856 F.2d 1412, 1415-16 (9th Cir. 1988).

For the foregoing reasons, Kelsaw's December 2, 2011 motion for relief from judgment is hereby DENIED.

IT IS SO ORDERED.

20120208

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