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Tucker v. Brazelton

United States District Court, E.D. California

July 1, 2014

GERALD L. TUCKER, Petitioner,
P. D. BRAZELTON, Respondent.


ANTHONY W. ISHII, District Judge.


Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I. Background

Petitioner filed his petition on September 23, 2013. On October 30, 2013, the Magistrate Judge filed findings and recommendations that the petition for writ of habeas be dismissed as an unauthorized successive petition, Petitioner's motions for injunctive relief and release be dismissed, the Court decline to issue a certificate of appealability, and the Clerk be directed to close the case. The findings and recommendations were served on all parties on the same date.[1] The findings and recommendations advised the parties that objections could be filed within thirty days and replies within fourteen days after the filing of objections. The thirty-day period for the filing of objections passed without objections being filed. On January 3, 2014, the Court adopted the findings and recommendations, dismissed the petition along with Petitioner's motions, and declined to issue a certificate of appealability.

From February 10, 2014, through May 27, 2014, Petitioner filed various documents styled as objections. In these documents, Petitioner asserted generally that the dismissal of his petition was a cover-up of a possible murder, and the CDCR tampered with his mail (doc. 15, 1-2); Petitioner did not consent to Magistrate Judge jurisdiction, the petition challenged a 2002 murder conviction in Tulare, he suffered a miscarriage of justice because the cops tampered with and planted evidence, he was actually innocent, and it was unfair to dismiss the petition without appointing counsel (docs. 16, 18, 19); and he had timely submitted unspecified documents because he requested the Clerk of the Central District to copy and send to this Court a copy of a document or documents that he filed there (doc. 17).

II. Objections

First, although Petitioner has denominated his filings as objections, the filings were untimely if considered to be objections. Further, it does not appear that Petitioner has set forth any grounds that would constitute good cause for an extension of the deadline for filing objections. Finally, the only argument in the filings that appears to address the substance of the findings and recommendations is Petitioner's contention that the petition filed in the instant case was not successive because it related to a different conviction from that involved in the first habeas proceeding in this Court. However, reference to the petition filed in the instant case and to documents filed in the previous habeas proceeding shows that both petitions relate to Petitioner's conviction of a violation of Cal. Pen. Code § 187 in connection with the murder and sexual assault of Wilma Jean McNutt. (Pet., doc. 1, 1, 5-84; Gerald L. Tucker v. Stuart Ryan, case number 1:04-cv-05663-OWW-DLB-HC, trav., doc. 37, 7-25; fdgs. & recs., doc. 45, 1-5.)

Thus, Petitioner's filings will not be considered as objections to the findings and recommendations.

III. Motion for Reconsideration of Ruling regarding Successive Petition

It is possible to consider Petitioner's filings as a motion for reconsideration of the dismissal of the petition as a successive petition.

A. Legal Standards

To the extent that Petitioner's filings constitute a motion for reconsideration, a motion for reconsideration is treated as a motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) if it is filed within the time limit set by Rule 59(e). United States v. Nutri-cology, Inc. , 982 F.2d 394, 397 (9th Cir. 1992). Otherwise, it is treated as a motion pursuant to Federal Rules of Civil Procedure 60(b) for relief from a judgment or order. American Ironworks & Erectors, Inc. v. North American Const. Corp. , 248 F.3d 892, 989-99 (9th Cir. 2001). A motion to alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e) "must be filed no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e).

Here, pursuant to the mailbox rule, Petitioner's first "objections" were filed on January 28, 2014, the date of the proof of service. (Doc. 15, 3.) If this date is considered to be the date of filing, it amounted to less than twenty-eight days after January 3, 2014, the date upon which the judgment was entered.[2] Thus, in an abundance ...

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