United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY MOTION TO SET
ASIDE JUDGMENT (DOC. 44)
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Steven Anthony Pack, a state prisoner proceeding pro
se, moves under F.R.Civ.P. 60(b)(1) to set aside the
judgment denying his petition for habeas relief pursuant to
28 U.S.C. § 2254. Petitioner contends that his failure
to file timely objections to the findings and recommendations
constituted excusable neglect for which the judgment should
be set aside. In the alternative, Petitioner seeks to set
aside the judgment under the extraordinary circumstances
provision of F.R.Civ.P. 60(b)(6). The undersigned recommends
that the Court deny the motion.
Factual and Procedural Background
in the morning of August 18, 2007, in a liquor store parking
lot in which taco trucks gathered, Petitioner and
co-defendants Nicholas Castenada and Jose Barajas, Jr.,
encountered a group of soccer players on their way home from
an evening of drinking and dancing. After Petitioner and his
co-defendants peppered the soccer players with a variety of
verbal insults, the interaction escalated into a verbal
argument. Ultimately, Petitioner and the co-defendants got
into Castenada's car, backed slowly toward the group of
soccer players, and fired into the group. Kevin Argueta
sustained a fatal head wound and died at the scene.
Stanislaus County Superior Court in February 2010, a jury
found Petitioner (1) guilty of second-degree murder, two
counts of assault with a firearm, and negligent discharge of
a firearm; (2) not guilty of two attempted murder counts, one
count of intentionally shooting at an occupied vehicle, a
gang enhancement appended to the murder charges, and gang
participation. The jury deadlocked on other gang enhancements
and seven attempted murder counts. On September 17, 2010, the
trial court sentenced Petitioner to a term of 40 years to
life in prison.
appealed the convictions to the California Court of Appeal,
Fifth Appellate District, which affirmed the convictions in
all regards on May 31, 2012. The California Supreme Court
summarily denied the appeal on September 12, 2012.
April 15, 2013, Petitioner filed a petition for writ of
habeas corpus in this Court. On September 8, 2016, the
Magistrate Judge entered findings and recommended that the
Court deny the petition for writ of habeas corpus and decline
to issue a certificate of appealability. The findings and
recommendations provided that either party could file
objections within thirty days. Although the Court twice
granted Petitioner's motions for enlargements of time,
granting him a total of ninety days in which to object, its
November 16, 2016, order provided that no further extensions
would be granted. Nonetheless, on December 16, 2016,
Petitioner again moved for an extension of time. The Court
denied the motion. Neither Petitioner nor Respondent filed
objections to the findings and recommendations. On January
17, 2017, the Court adopted the findings and recommendations
and entered judgment denying the petition. On May 5, 2017,
Petitioner moved for relief from judgment under F.R.Civ. P.
Rule 60(b) Motions Are Limited in Habeas
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") applies to all petitions for writ of
habeas corpus filed on or after April 24, 1996. Lindh v.
Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory
terms, the petition in this case is governed by AEDPA's
provisions because Petitioner filed it after April 24, 1996.
other purposes, AEDPA was intended to ensure greater finality
of state and federal court judgments in criminal cases.
See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
To accomplish its purpose, AEDPA imposes significant
restrictions on second or successive petitions. 28 U.S.C.
§ 2244(b). With limited exceptions, a petitioner may not
pursue relief in a second or successive habeas petition.
Id. Even in those cases in which the statute permits
a prisoner to file a second or successive petition, the
prisoner must first move in the appropriate circuit court of
appeals for authorization to file the second or successive
petition. 28 U.S.C. § 2244(b)(3)(A). Failure to secure
authorization is a jurisdictional bar that requires a
district court to dismiss the petition. Rishor v.
Ferguson, 822 F.3d 482, 490 (2016) (petition for
restrictions on second or successive habeas applications
severely limit the application of F.R.Civ.P. 60(b) in federal
habeas actions. See Barrett v. Yearwood, 83
Fed.Appx. 160, 161 n. 1 (9th Cir. 2003). The
Federal Rules of Civil Procedure may be applied, when
appropriate, in § 2254 proceedings, but only to the
extent that they are not inconsistent with other statutory
provisions or the Rules Governing Section 2254 Cases in the
United States District Courts. Rule 12, Rules Governing
Section 2254 Cases in the United States District Courts. As a
result, a petitioner may not rely on the provisions of R.
60(b) if a reconsideration motion under R. 60(b) is
tantamount to a second or successive petition.
60(b) motion is subject to AEDPA's restrictions on second
or successive petitions when the motion seeks to present
newly discovered evidence, add a new claim for relief, attack
the resolution of a claim on its merits, or vacate a judgment
based on a subsequent change in the law. Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005). The restrictions do
not apply, however, if the motion seeks only to address a
defect in the integrity of the federal habeas proceedings.
Id. at 532. “Put another way, a motion that
does not attack ‘the integrity of the proceedings, but
in effect asks for a second chance to have the merits
determined favorably' raises a claim that takes it
outside the bounds of Rule 60(b) and within the scope of
AEDPA's limitations on second or successive habeas corpus
petitions.” Jones v. Ryan, 733 F.3d 825, 834
(9th Cir. 2013).
case, Petitioner seeks relief from judgment based solely on
the denial of his third motion for extension of time to file
objections. To the extent that Petitioner does not seek to
vacate the judgment based on its substantive provisions, the
R. 60(b) motion is not limited by AEDPA's restrictions on
second or successive petitions. Reaching this conclusion
requires drawing a very fine dividing line, however, since
setting aside the judgment to permit Petitioner to file
objections is ultimately intended to permit advocacy for
substantive change. The undersigned has been unable to
identify any prior case addressing similar facts. The Court
need not reach this issue, however, if it agrees with the
undersigned that Petitioner did not allege a basis sufficient
to set aside the judgment.
Standards for Reviewing Rule 60(b)(1)
court may relieve a party or its legal representative from a
final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect.” F.R.Civ.
60(b)(1). As stated above, Petitioner contends that his
failure to file objections within the time period provided by
the findings and recommendations resulted from his excusable
purposes of Rule 60(b), ‘excusable neglect' is
understood to encompass situations in which the failure to
comply with a filing deadline is attributable to
negligence.” Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. P'ship, 507 U.S. 380, 394 (1993). In
Pioneer, the Supreme Court described a continuum of
failure to comply with a filing deadline, including at one
end, an act of God or unforeseen human intervention, and at
the other end, the party's decision simply to ignore the
deadline. Id. at 387-88. In the middle are instances
in which the filer chooses to miss the deadline for reasons
of varying value, such as stopping to render first aid to an
accident victim, inadvertence, or miscalculation.
Id. at 388. The Court found that the rule itself
granted a reprieve to “out-of-time filings that were
delayed by ‘neglect, '” the plain meaning of
which includes both faultless omissions to act and omissions
resulting from carelessness. Id. By empowering the
courts to accept late filings in cases of excusable neglect,
“Congress plainly contemplated that the courts would be
permitted, where appropriate, to accept late filings caused
by inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's
determination is at bottom an equitable one, taking account
of all relevant circumstances surrounding the party's
omission.” Id. at 395. The relevant
circumstances include (1) the danger of prejudice to the
opposing party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay,
including whether it was within the movant's reasonable
control; and (4) whether the movant acted in good faith.
Id.; Bateman v. United States Postal Serv.,
231 F.3d 1220, 1223-24 (9th Cir. 2000).
regard, Petitioner's reliance on TCI Group Life Ins.
Plan v. Knoebber, 244 F.3d 691 (9th Cir.
2001), overruled on other grounds by Egelhoff v. Egelhoff
ex rel. Breiner, 532 U.S. 141 (2001), is misplaced. In
TCI, a widow's motion to set aside a default
judgment against her in a dispute with her mother-in-law
concerning the proceeds of her late husband's life
insurance policy was evaluated in the context of the
differing principles related to default judgments. 244 F.3d
at 693. In addition, nothing in TCI supports
Petitioner's contention that “'excusable
neglect' . . . implies some degree of sloth, ...