United States District Court, E.D. California
October 3, 2014
OSCAR TORRES ARBOLEDA, Petitioner,
RICK HILL, Respondent.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 16, 2014, the district court adopted this court's findings and recommendations, after no objections were filed, recommending that the petition be dismissed for failure to raise cognizable federal habeas claims, and because the ex post facto claim is part of a class action. Judgment was entered at that time. On September 17, 2014, petitioner filed objections, stating that he originally mailed the objections within the time required by the findings and recommendations, but they were returned to him on September 11, 2014 in a damaged state. He has enclosed a photocopy of the damaged envelope. Because judgment has already been entered, the court construes the objections as a motion for relief from judgment under Fed.R.Civ.P. 60(b).
Under Rule 60(b), a party may seek relief from judgment and to re-open his case in limited circumstances, "including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby , 545 U.S. 524, 528, 125 S.Ct. 2641, 2645-46 (2005). Rule 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud..., misrepresentation, or misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
"Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure are addressed to the sound discretion of the district court." Allmerica Financial Life Insurance and Annuity Co. v. Llewellyn , 139 F.3d 664, 665 (9th Cir. 1997).
The objections make the same arguments raised in petitioner's opposition to the motion to dismiss, that "fictitious evidence" was used to deny him his liberty interest, and that the "administrative agents failed to perform their statutory duty." If these objections had been filed and considered in a timely fashion, the result would be the same. Petitioner has not raised any new arguments or evidence which would change the outcome of the case.
In accordance with the above, IT IS HEREBY RECOMMENDED that: Plaintiff's objections, filed September 17, 2014, construed as a motion for relief from judgment pursuant to Rule 60(b), (ECF No. 20), be denied.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).