United States District Court, E.D. California
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
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
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.
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.)
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
Petitioner's Motion for Reconsideration
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."
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).
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).
case, the Court will grant Petitioner's motion for
reconsideration, vacate the judgment, and consider
Petitioner's objections to the findings and
Petitioner Is Not Entitled to Equitable Tolling Based on
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.”
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.
McQuiggin v. Perkins, the United States Supreme
Court held that “actual innocence” can be an