United States District Court, N.D. California
November 12, 2014
MARTIN D. ROYAL, Petitioner,
M. MARTEL, Warden, Respondent.
ORDER DENYING MOTION TO AMEND
RONALD M. WHYTE, District Judge.
On December 17, 2008, petitioner, a California prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 5, 2010, the court denied petitioner's petition for writ of habeas corpus, and entered judgment in favor of the respondent. On April 13, 2012, the Ninth Circuit Court of Appeal denied a certificate of appealability. On April 11, 2014, petitioner filed the instant motion to amend his petition.
It is settled law in this circuit that one cannot use Rule 15 once an action has been dismissed and a final judgment entered unless the judgment is set aside under Federal Rules of Civil Procedure 59(e) or 60(b). See Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996) ("[O]nce judgment has been entered in a case, a motion to amend the complaint can only be entertained if the judgment is first reopened under a motion brought under Rule 59 or 60"). This rule applies equally to habeas petitions. See Woodford v. Garceau, 538 U.S. 202, 208 (2003) ("The Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that they are not inconsistent with the Habeas Corpus Rules."). Re-opening a case is a high hurdle to overcome, as judgment is not properly reopened "absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001).
Here, the court will not entertain a motion for relief from judgment, as petitioner has failed to demonstrate any of the grounds which might warrant such relief. Rather, he simply raises new claims of trial error, which would have been apparent to him at the time of his conviction. Thus, even if petitioner had filed a proper motion for relief from judgment, such relief would not be available.
Finally, construing this pleading as a new petition for writ of habeas corpus challenging the state court judgment under which petitioner is currently serving a prison sentence, the petition must be dismissed as successive under 28 U.S.C. § 2244(b)(3)(A), because permission for filing has not been obtained from the court of appeal.
Petitioner's motion to amend is DENIED. No further filings will be accepted in this closed case.
IT IS SO ORDERED.
ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL (Docket No. 33)
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 5, 2010, the court denied the petition, entered judgment in favor of respondent, and declined to issue a certificate of appealability. Petitioner has filed a notice of appeal and a motion to waive filing fees on appeal. The court construes plaintiff's motion as an application to proceed IFP on appeal.
Because the court declined to issue a certificate of appealability in the order denying the petition, petitioner's request to proceed IFP on appeal (docket no. 32) is also DENIED. When the court declined to issue a certificate of appealability in the order denying the petition, it determined that there were no valid grounds for an appeal. Accordingly, granting the petitioner's application to proceed IFP on appeal would not be appropriate.
This order terminates docket no. 32.
IT IS SO ORDERED.