United States District Court, S.D. California
March 20, 2014
EARNEST CASSELL WOODS, Petitioner,
THE STATE OF CALIFORNIA, Respondent.
ORDER DENYING RULE 60(b) MOTION FOR RELIEF FROM JUDGMENT AND DENYING MOTION FOR CHANGE OF VENUE
GONZALO P. CURIEL, District Judge.
On February 6, 2014, Petitioner, Earnest Cassell Woods, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his April 29, 1987, conviction and sentence in San Diego Superior Court Case No. CR 83908. (See Pet. at 1.) On February 12, 2014, the Court dismissed the Petition for lack of jurisdiction pursuant to 28 U.S.C. § 2244(b)(3)(A), which provides that a petitioner cannot proceed with a second or successive petition in the district court without permission from the Court of Appeals. The Court noted that Petitioner had already challenged his April 29, 1987, conviction in a Petition for a Writ of Habeas Corpus filed in this Court, which was denied on the merits, and that Petitioner admitted he has not received permission from the Ninth Circuit Court of Appeals to file a second or successive petition. (See ECF No. 5 at 1-2.) The Court also noted that one of the claims presented in the Petition apparently challenges a recent denial of parole, and notified Petitioner that if he wishes to challenge the denial of parole, he must do so in a separate petition. See Rule 2(e), Rules foll. 28 U.S.C. § 2254 ("A petitioner who seeks relief from judgments of more than one state court must file a separate petitions covering the judgment or judgments of each court.")
Petitioner has now filed a Motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), Objections to the dismissal Order, and a Motion for change of venue. (ECF Nos. 9, 11, 13.) Petitioner states in his Rule 60(b) Motion that he is asking the Court to reopen the judgement in his previous habeas case rather than dismiss the Petition as second or successive. Petitioner states in his Objections and Motion for change of venue, however, that he intended, in the instant Petition, to challenge his recent parole denial, and asks the Court to vacate its dismissal Order and transfer the Petition to the District Court for the Northern District of California where the parole denial took place.
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment based on: (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. Fed.R.Civ.P. 60(b).
Petitioner has failed to satisfy any of these provisions, either for reconsideration of the February 12, 1014, dismissal Order in this case, or in his previous habeas case in this Court. See United States v. Washington , 653 F.3d 1057, 1064 (9th Cir. 2011) (holding that a Rule 60(b) motion which does not allege a "defect in the integrity of the federal habeas proceeding" but merely seeks to re-litigate claims which were previously denied on the merits, must be treated as a second or successive petition), citing Gonzalez v. Crosby , 545 U.S. 524, 535 (2005); see also Thompson v. Calderon , 151 F.3d 918, 921 (9th Cir. 1998) (en banc) (same). Rather, as the Court observed, the Petition in this matter, as written, challenges Petitioner's April 29, 1987, conviction as well as his recent parole denial, and Rule 2(e) of the Rules following 28 U.S.C. § 2254 precludes the Court from considering two such challenges in the same petition. Petitioner was and remains free to file a separate federal habeas petition challenging his recent parole denial in the district court for the Northern District of California, which is the proper venue for such a petition.
For the reasons set forth in the Court's February 12, 2014, Order of dismissal, this Court lacks jurisdiction over the Petition because it is second or successive. Petitioner's belated assurance that the Petition challenges only his recent parole denial strains the requirement of liberal construction of pro se pleadings. In light of Petitioner's professed understanding that proper venue for his parole challenges lies in the Northern District of California, and the lack of any barrier apparent to his proceeding with such a petition in that Court, the Court finds no basis upon which to vacate the previous Order of dismissal, construe the Petition as presenting only a challenge to Petitioner's recent parole denial, and transfer the action to the Northern District of California. To the extent the Rule 60(b) Motion seeks to reopen the previous federal habeas case in this Court, it is denied as an attempt to file a second or successive petition.
CONCLUSION AND ORDER
The Court DENIES Petitioner Rule 60(b) Motion, and DENIES Petitioner's Motion for change of venue. The denials are without prejudice to Petitioner to present his challenge to the denial of parole to the Northern District of California in a separate petition. The Court declines to issue a Certificate of Appealability.
IT IS SO ORDERED.