Michael D. Fulton v. D. Paramo

Filing 29

ORDER ACCEPTING REPORT AND RECOMMENDATION of United States Magistrate Judge and Denying Certificate of Appealability by Judge Josephine L. Staton: Accordingly, IT IS ORDERED THAT: The Report and Recommendation, with the aforementioned clarification, is approved and accepted; Judgment be entered dismissing this action with prejudice; All pending motions are denied as moot and terminated; and The Clerk serve copies of this Order on the parties. See document for further information. (lwag)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 MICHAEL D. FULTON, Petitioner, v. D. PARAMO, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. LA CV 16-3019 JLS (JCG) ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate 19 Judge’s Report and Recommendation (“R&R”), [Dkt. No. 26], Petitioner’s Objections 20 to the Report and Recommendation (“Objections”), [Dkt. No. 27], and the remaining 21 record, and has made a de novo determination. 22 Petitioner’s Objections generally reiterate the same arguments made in the 23 Petition, and lack merit for the reasons set forth in the R&R. There is one issue 24 however, that warrants brief discussion here. 25 In his Objections, Petitioner argues that his first federal habeas petition (“Initial 26 Petition”), which was filed on September 30, 2015 and summarily dismissed by the 27 Court on October 30, 2015, see Case No. 15-7685 JLS (JCG), Dkt. Nos. 1, 6-7, was 28 1 1 “erroneously” dismissed. (See Objections at 1, 8.) In effect, Petitioner seeks to set 2 aside the Court’s October 30, 2015 summary dismissal, thereby rendering his “[I]nitial 3 [P]etition [] timely.” (See Objections at 8.) The Court thus liberally construes 4 Petitioner’s argument as a motion under Fed. R. Civ. P. 60(b) for relief from judgment. 5 As a rule, parties seeking relief from judgment must file a motion under: 6 (1) Fed. R. Civ. P. 60(b)(1)-(3) within one year; or (2) Fed. R. Civ. P. 60(b)(4)-(6) 7 within a “reasonable time.” See Fed. R. Civ. P. 60(c). However, “[t]o receive relief 8 under Rule 60(b)(6), a party must demonstrate ‘extraordinary circumstances which 9 prevented or rendered him unable to prosecute [his case].’” Lal v. California, 610 F.3d 10 11 518, 524 (9th Cir. 2010) (internal citations omitted). Here, none of the grounds for relief under the Rule 60(b) are applicable. First, 12 because more than one year has passed since the October 30, 2015 summary dismissal 13 of Petitioner’s prior federal petition, Rules 60(b)(1)-(3) are inapplicable. Second, 14 because Petitioner does not claim that the prior judgment was void, satisfied, released, 15 or discharged, Rules 60(b)(4)-(5) are inapplicable. 16 Third, because Petitioner fails to claim that “there were ‘extraordinary 17 circumstances’ beyond [his] control that prevented [him] from taking timely action to 18 prevent or correct an [allegedly] erroneous judgment,” Rule 60(b)(6) is also 19 inapplicable. See Franklin v. Scribner, 2008 WL 1817263, at *2 (C.D. Cal. Apr. 16, 20 2008). In fact, Petitioner was able to file two additional state habeas petitions shortly 21 after the Court’s October 3, 2015 dismissal. [Dkt. Nos. 18-4, 18-6.] Thus, there does 22 not appear to have been any extraordinary circumstances preventing Petitioner from 23 filing a timely motion for relief from judgment. 24 As such, the Court accepts the finding and recommendation in the R&R, but 25 notes one clarification: because the Petition was filed on April 25, 2016, [Dkt. No. 1 at 26 9], it was untimely by one month when accounting for all statutory tolling. See 28 27 U.S.C. § 2244(d)(1-2). 28 2

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