The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas 5 corpus pursuant to 28 U.S.C. § 2254. 6 PROCEDURAL HISTORY The instant petition was filed on August 9, 2011. (Doc. 1). On October 10, 2012, the
ORDER DENYING PETITIONER‟S MOTION FOR RELIEF FROM JUDGMENT (Doc. 12) ORDER DENYING AS MOOT MOTION FOR EVIDENTIARY HEARING (Doc. 13) ORDER DENYING AS MOOT MOTION FOR RELEASE DURING APPEAL (Doc. 14)
Magistrate Judge entered Findings and Recommendations to dismiss the petition as untimely pursuant to 28 U.S.C. § 2244(d)(1). (Doc. 8). On November 22, 2012, the district court judge adopted those Findings and Recommendations, entered judgment against Petitioner, and ordered the file closed. (Doc. 9). On June 3, 2012, Petitioner filed the instant motion for relief from judgment, contending that counsel was ineffective for filing the petition six months after the one-year limitation period had expired and because Petitioner is actually innocent. (Doc. 12). Also on June 3, 2012, Petitioner filed a motion to be released from custody during the pendency of his "appeal," and for an evidentiary hearing. (Docs. 13 & 14).
In response to the allegations in Petitioner‟s motion for relief from judgment, the Court issued 2 an Order to Show Cause on June 21, 2012, directed at Petitioner‟s counsel, Gregory Mitts, requiring Mr. Mitts to file a response that addressed Petitioner‟s allegations of ineffective assistance of counsel.
(Doc. 17). On September 4, 2012, after an extension of time had been granted, Mr. Mitts filed his 5 response. (Doc. 26). In the interim, Petitioner had filed several letters attempting to further develop, 6 both factually and legally, his claims. (Docs. 19, 22, 25). Following Mr. Mitts response, Petitioner 7 filed several more "supplements" to his motion, again providing further arguments regarding the 8 issues at hand. (Docs. 29, 30). 9
The Court has read and considered all of the relevant filings by both Petitioner and Mr. Mitts. For the reasons set forth below, the Court denies Petitioner‟s motion for relief from judgment.
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment on grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (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). A motion under Rule 60(b) 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.
Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441
(D.C.Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a party 2 must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior 3 decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 4 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987). 5
Here, Petitioner has failed to meet any of the requirements for granting a motion for 6 reconsideration: He has not shown "mistake, inadvertence, surprise, or excusable neglect;" he has 7 certainly not shown the existence of either newly discovered evidence or fraud; he has not established 8 that the judgment is either void or satisfied; and, finally, Petitioner has not presented any other reasons 9 justifying relief from judgment. Moreover, pursuant to the Court‟s Local Rules, Petitioner has not shown "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." Local Rule 230(j). (Emphasis supplied).
In his motion, Petitioner essentially argues that he is entitled to equitable tolling, or some unspecified other form of equitable relief, due to his counsel‟s ineffective assistance of Petitioner during these proceedings. Petitioner also contends that he is actually innocent of the crimes for which he was convicted. In support of his ineffective assistance claim, Petitioner alleges in his motion for relief from judgment that counsel, Mr. Mitts, was hired by Petitioner in March 2010 to file a federal habeas corpus petition and to assist Petitioner in three other related legal matters; that, after representing Petitioner in these matters, Petitioner did not receive any communication from Mitts after March 24, 2011; that Mitts did not inform Petitioner that the instant petition had been filed on August 9, 2011; and that Petitioner discovered that the petition had been dismissed as untimely only after his wife discovered that fact on the internet on November 25, 2011. (Doc. 12, pp. 5-6).
As mentioned, a result of Petitioner‟s allegations, the Court, on June 21, 2012, ordered Mr. Mitts to file a response within thirty days. (Doc. 17). After obtaining an extension of time due to 3 medical problems, Mitts filed a response on September 4, 2012. (Doc. 26). That response alleges, 4 under penalty of perjury, that Mitts, a bar certified criminal law specialist, was retained by Petitioner 5 after that latter‟s conviction in order to file a motion for a new trial, which was denied; that court-6 appointed counsel represented Petitioner during his direct appeal, but that Mitts was retained by 7
Petitioner to pursue a state habeas corpus petition Petitioner had previously filed in propria persona; 8 that after that state petition had been denied in the California Court of Appeal, Mitts filed a petition for 9 review in the California Supreme Court on behalf of Petitioner, which was also denied; that Petitioner retained Mitts to represent him in an appeal of a restitution order in favor of the victim and against Petitioner; that Mitts filed the instant petition on Petitioner‟s behalf on August 9, 2011, believing it to be timely; that after being notified by this Court of the possibility that the petition was untimely, further research convinced Mitts that the Court was correct; that Mitts did not respond to the Court‟s Order to Show Cause because to do so would necessitate a concession by counsel of the petition‟s untimeliness; that sometime after the instant petition was dismissed, Petitioner‟s wife contacted Mitts to express Petitioner‟s displeasure at the dismissal and to ask about available legal options; and that Mitts explained to Petitioner‟s wife that timeliness was jurisdictional ...