The opinion of the court was delivered by: Hon. Irma E. Gonzalez United States District Judge
MOTION FOR RELIEF FROM JUDGMENT [ECF No. 35.]
Petitioner, Tony Goodrum (hereinafter "Petitioner"), filed an Amended Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) challenging the Court's dismissal of his Petition for Writ of Habeas Corpus in the present case. [ECF No. 35.] After reviewing Petitioner's Motion and Respondent's Response, the Court DENIES Petitioner's motion.
Petitioner has filed two Petitions for Writ of Habeas Corpus pursuant 28 U.S.C. §2254 in this Court challenging his San Diego Superior Court conviction in case number SCD170068. On April 23, 2007, Petitioner filed a petition in case number 07cv0752. (See Petition Goodrum v. Cate, 07cv0752 IEG (JMA) Apr. 23, 2007.) While the petition was pending, Petitioner filed an application for leave to file a second or successive petition with the Ninth Circuit Court of Appeals. (See Application Goodrum v. Kramer, 07-72512 (Jun. 22, 2007).) The Ninth Circuit denied Petitioner's application "without prejudice to refiling should petitioner receive an unfavorable disposition of the first petition that is currently pending in the district court." (See Order Goodrum v. Kramer, 07-72512 Sep. 13, 2007.) On September 6, 2008, this Court denied the petition in case number 07cv0752. (See Order, Goodrum v. Cate, 07cv0752 IEG (JMA) Nov. 12, 2008 [ECF No. 31].) Petitioner filed a second application for leave to file a second or successive petition with the Ninth Circuit Court of Appeals on October 29, 2010, which was granted on August 31, 2011. (See Application for Leave to File Successive Petition, Goodrum v. Busby, 10-73336, Oct. 29, 2010; Order Goodrum v. Busby 10-73336, Aug. 13, 2011.)
Following the Ninth Circuit's order, Petitioner filed a Petition for Writ of Habeas Corpus in this Court on September 23, 2011, which was amended on November 9, 2011, in which he argued that he was entitled to bring new claims challenging the state court conviction he previously challenged in this Court because he had newly discovered evidence to support claims of ineffective assistance of counsel and sentencing error. [ECF Nos. 1, 10.] On October 7, 2011, the parties were ordered by the Court to show cause as to whether the claims in the Petition met the requirements of 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition. [ECF No. 3.] On January 20, 2012, Respondent filed a Response to the Order to Show Cause, and after several extensions of time, Petitioner filed a Reply on April 10, 2012. [ECF Nos. 16, 24.] In his Reply, Petitioner stated that he was making claims of actual innocence, in addition to his other claims raised in the Petition, and contended he was entitled to move forward with this claim whether it was subject to the standard for successive petitions set forth in 28 U.S.C. § 2244(b) or the actual innocence exception enunciated in Schlup v. Delo, 513 U.S. 298 (1995). (Reply 9.)*fn1
By Order dated June 13, 2012, the Court found that Petitioner did not satisfy the requirements of 28 U.S.C. § 2244(b)(2)(B) for filing a second or successive petition, and alternately determined that Petitioner could not proceed on his actual innocence claim under Schlup. [ECF No. 25.] The Court further denied Petitioner's request for discovery concerning law enforcement officers and denied his request for an evidentiary hearing. On July 9, 2012, Petitioner filed a Motion for Relief from Judgment, which he amended with leave of Court on August 10, 2012. [ECF Nos. 30, 35.] In response to Court order, Respondent filed a Response to the amended motion on September 27, 2012. [ECF No. 38.]
The Federal Rules of Civil Procedure apply in federal habeas corpus cases to the extent they are consistent with the Rules Governing Habeas Corpus Petitions. See 28 U.S.C. § 2254 Rule 11; Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). Rule 60(b) provides relief from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...