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Pack v. Peery

United States District Court, E.D. California

May 29, 2017

STEVEN ANTHONY PACK, Petitioner,
v.
SUZANNE M. PEERY, Acting Warden, CCF Susanville, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY MOTION TO SET ASIDE JUDGMENT (DOC. 44)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. Factual and Procedural Background [1]

         Early 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.

         In 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.

         Petitioner 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.

         On 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. 60(b).

         II. Rule 60(b) Motions Are Limited in Habeas Actions

         The 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.

         Among 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 cert. pending).

         AEDPA's 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.

         A Rule 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).

         In this 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.

         III. Standards for Reviewing Rule 60(b)(1) Motions

         “[A] 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 neglect.

         “[F]or 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 control.” Id.

         “[T]he 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).

         In this 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, ...


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