Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Titus v. Madden

United States District Court, E.D. California

June 28, 2019

MARVIN DOUGLAS TITUS, Petitioner,
v.
RAYMOND MADDEN, Warden, Respondent.

          ORDER GRANTING MOTION FOR RECONSIDERATION (Doc. 45) ORDER VACATING ORDER ADOPTING FINDINGS AND RECOMMENDATION AND JUDGMENT (Docs. 37, 38) ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 32) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. Background

         Petitioner Marvin Douglas Titus is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.

         On June 8, 2018, the Magistrate Judge filed findings and recommendation in which she recommended that the Court dismiss the petition as untimely and decline to issue a certificate of appealability. The findings and recommendation, which were served on Petitioner, provided that objections could be served within thirty days. After receiving two extensions of time to file objections, Petitioner's objections were due on August 13, 2018. (Doc. 36.) No. objections were received by August 13, 2018. Subsequently, the Court adopted the Magistrate Judge's findings and recommendation, judgment was entered, and the action was closed on August 16, 2018. (Docs. 37, 38.)

         On August 23, 2018, the Court received objections to the findings and recommendation, which were signed by Petitioner on August 16, 2018. (Doc. 39.) On September 13, 2018, Petitioner filed a notice of appeal that was processed to the Ninth Circuit on the same day. (Docs. 41, 42.) On November 19, 2018, Petitioner filed a motion for reconsideration, requesting this Court vacate its judgment entered on August 16, 2018. (Doc. 45.) On January 30, 2019, the Court issued an order vacating the August 16, 2018, final judgment and entered a new final judgment. (Docs. 46, 47.) On June 27, 2019, the Ninth Circuit issued an order remanding the case to this Court for the limited purpose of enabling the Court to re-enter the January 30, 2019, order and final judgment. (Doc. 48.) This Court had determined that the notice of appeal did not divest the Court of jurisdiction to reconsider its order and judgment, however, the Ninth Circuit disagreed. Accordingly, the Court will re-enter the order and final judgment.

         II. Petitioner's Motion for Reconsideration

         Rule 60(b) of the Federal Rules of Civil Procedure provides that “[o]n 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 that, with reasonable diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by an opposing party; . . . or (6) any other reason justifying relief from the operation of judgment.” Motions under Rule 60(b) "must be made within a reasonable time -- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding."

         Relief under Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted) (addressing reconsideration under Rules 60(b)(1)-(5)). The moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted).

         “A motion for reconsideration should not be granted, 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, ” and it “may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).

         In this case, the Court will grant Petitioner's motion for reconsideration, vacate the judgment, and consider Petitioner's objections to the findings and recommendation.

         III. Petitioner Is Not Entitled to Equitable Tolling Based on Actual Innocence

         Here, the Court granted Respondent's motion to dismiss, because the petition was untimely and Petitioner was not entitled to equitable tolling. Petitioner originally argued he was entitled to equitable tolling because trial counsel failed to send him his files from the trial in a timely manner. (Doc. 24 at 8.) Now, Petitioner states in his objections, for the first time, that he is entitled to equitable tolling because he is actually innocent. (Doc. 39 at 10.) Petitioner states his actual innocence claim was “mentioned in his opposition to motion to dismiss, but not argued because there was no need based upon the truth of the matter.” Id.

         A district court has the discretion to consider evidence or claims presented for the first time in objections to a Magistrate Judge's Report and Recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002). Despite the fact that Petitioner did not raise this claim until he filed his objections, the Court will consider Petitioner's actual innocence claim.

         In McQuiggin v. Perkins, the United States Supreme Court held that “actual innocence” can be an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.