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David Griffin v. Connie Gipson

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


January 4, 2013

DAVID GRIFFIN, PETITIONER,
v.
CONNIE GIPSON,*FN1 WARDEN (A), CALIFORNIA STATE PRISON, CORCORAN RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER [Re: Motions at Docket Nos. 21, 22]

At Docket No. 21 David Griffin, a state prisoner appearing pro se, filed a document entitled "Objection to Magistrates Report and Recommendations," and at Docket No. 22 a request to appoint counsel. The record indicates that on October 11, 2012, this Court entered its Memorandum Decision and Judgment denying Griffin's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254*fn2 . On November 28, 2012, Griffin filed an untitled document requesting a thirty-day extension to respond.*fn3 Treating Griffin's untitled document at Docket No. 19 as a motion to extend the time to appeal, this Court extended Griffin's time to file a notice of appeal through December 17, 2012.*fn4 This Court lacks authority to further extend the time within which to appeal.*fn5

Motion at Docket No. 21

Griffin has mistakenly construed the Memorandum Decision entered by this Court as the Report and Recommendation of a Magistrate Judge.*fn6 Accordingly, Griffin's "Objection to Magistrates Report and Recommendations,"*fn7 is inapposite. Because this court must liberally construe a prisoner's pro se pleadings,*fn8 this Court will treat Griffin's document filed at Docket No. 21 as a timely motion for Relief from a Judgment of Order under Federal Rule of Civil Procedure 60(b). That rule provides:

(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;

(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 prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Nothing in Griffin's motion justifies the granting of relief on the basis of either: mistake, inadvertence, surprise, or excusable neglect (Rule 60(b)(1)); newly discovered evidence (Rule 60(b)(2)); fraud or misrepresentation (Rule 60(b)(3)); that the judgment is void (Rule 60(b)(4)); or that the judgment has been satisfied, reversed, or vacated (Rule 60(b)(5)). Only extraordinary circumstances justify relief under Rule 60(b)(6).*fn9 Rule 60(b) is neither a substitute for appeal,*fn10 nor a vehicle to rehash arguments that have been made and rejected, which is considered a successive application for relief under § 2254.*fn11 Accordingly, Griffin is not entitled to relief from the judgment entered herein under Rule 60.

Motion at Docket 22

There is no constitutional right to counsel in federal habeas proceedings.*fn12 Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order granting discovery or an evidentiary hearing.*fn13 This Court may appoint counsel under the Criminal Justice Act in this case if the court determines that the interests of justice so require.*fn14 Because this case has been fully briefed and adjudicated on the merits, and the Court determined that no Certificate of Appealability should be granted, this Court does not so determine.

IT IS HEREBY ORDERED THAT the "Objection to Magistrates Report and Recommendations," filed at Docket No. 21, treated as a motion for relief from a final judgment under Federal Rule of Civil Procedure 60, is DENIED.

IT IS FURTHER ORDERED THAT the motion to appoint counsel at Docket No. 22 is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn15 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn16

James K. Singleton, Jr.


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