ORDER GRANTING REQUEST FOR RELIEF FROM JUDGMENT TO ALLOW FILING OF TIMELY NOTICE OF APPEAL
(Docket #7 & 9)
LUCY H. KOH, District Judge.
Petitioner Pablo Ramirez, a state prisoner currently incarcerated at San Quentin State Prison (SQSP), moves the court to vacate its prior judgment pursuant to Federal Rule of Civil Procedure 60(b) and to re-enter it in order to allow him to file a timely notice of appeal. For the reasons set forth below, the court finds that relief from its prior judgment so that petitioner may pursue an appeal is in order.
On November 9, 2007, petitioner was convicted of attempted murder and assault with a firearm, with enhancements of personal use of a firearm and infliction of great bodily injury, by a jury in San Mateo County Superior Court. On February 6, 2008, the court sentenced petitioner to 34 years to life in state prison.
Petitioner appealed, but the California Court of Appeal affirmed the conviction on April 10, 2009, and the Supreme Court of California denied review on July 8, 2009. The state courts also denied petitioner's subsequent applications for state habeas corpus relief.
On September 27, 2010, petitioner, proceeding pro se but with the assistance of another inmate, filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. Among other things, petitioner claimed that he received ineffective assistance of trial and appellate counsel in connection with these state criminal proceedings. After the court issued a routine order directing respondent to show cause why a writ of habeas corpus should not be granted, respondent filed a response, and petitioner filed a traverse.
On December 9, 2011, the court denied the federal petition on the merits and entered judgment against petitioner. The court also denied a certificate of appealability (COA) in the same ruling, as required by the federal rules governing habeas cases brought by state prisoners. There is no indication on the docket that petitioner filed a notice of appeal or equivalent.
On May 17, 2013, petitioner, now represented by counsel, filed a motion asking the court to vacate its prior judgment pursuant to Rule 60(b) and to re-enter it in order to allow him to file a timely notice of appeal, on the ground that the inmate who assisted petitioner with his federal habeas petition misled petitioner to believe that petitioner had filed a timely notice of appeal.
On November 1, 2013, petitioner, proceeding pro se but with the assistance of the inmate who helped him with his federal habeas petition, filed a second motion asking the court to vacate its prior judgment pursuant to Rule 60(b) and to re-enter it in order to allow him to file a timely notice of appeal, on the ground that the inmate who assisted petitioner with his federal habeas petition did in fact submit to prison officials for filing a timely request for a COA from the Ninth Circuit, which under the law of the circuit also may serve as a timely notice of appeal.
Respondent did not file an opposition to either of petitioner's motions.
Rule 60(b) provides that a district court may relieve a party from a final judgment, order or proceeding where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud, misrepresentation or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) any other reason justifying relief. Fed.R.Civ.P. 60(b).
A motion under Rule 60(b) must be made within a reasonable time. Fed.R.Civ.P. 60(c)(1). For reasons (1), (2) and (3), the motion must be made no more than a year after the entry of the ...