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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL D. FULTON,
Petitioner,
v.
D. PARAMO,
Respondent.

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Case No. LA CV 16-3019 JLS (JCG)
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate

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Judge’s Report and Recommendation (“R&R”), [Dkt. No. 26], Petitioner’s Objections

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to the Report and Recommendation (“Objections”), [Dkt. No. 27], and the remaining

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record, and has made a de novo determination.

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Petitioner’s Objections generally reiterate the same arguments made in the

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Petition, and lack merit for the reasons set forth in the R&R. There is one issue

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however, that warrants brief discussion here.

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In his Objections, Petitioner argues that his first federal habeas petition (“Initial

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Petition”), which was filed on September 30, 2015 and summarily dismissed by the

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Court on October 30, 2015, see Case No. 15-7685 JLS (JCG), Dkt. Nos. 1, 6-7, was

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“erroneously” dismissed. (See Objections at 1, 8.) In effect, Petitioner seeks to set

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aside the Court’s October 30, 2015 summary dismissal, thereby rendering his “[I]nitial

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[P]etition [] timely.” (See Objections at 8.) The Court thus liberally construes

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Petitioner’s argument as a motion under Fed. R. Civ. P. 60(b) for relief from judgment.

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As a rule, parties seeking relief from judgment must file a motion under:

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(1) Fed. R. Civ. P. 60(b)(1)-(3) within one year; or (2) Fed. R. Civ. P. 60(b)(4)-(6)

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within a “reasonable time.” See Fed. R. Civ. P. 60(c). However, “[t]o receive relief

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under Rule 60(b)(6), a party must demonstrate ‘extraordinary circumstances which

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prevented or rendered him unable to prosecute [his case].’” Lal v. California, 610 F.3d

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518, 524 (9th Cir. 2010) (internal citations omitted).
Here, none of the grounds for relief under the Rule 60(b) are applicable. First,

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because more than one year has passed since the October 30, 2015 summary dismissal

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of Petitioner’s prior federal petition, Rules 60(b)(1)-(3) are inapplicable. Second,

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because Petitioner does not claim that the prior judgment was void, satisfied, released,

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or discharged, Rules 60(b)(4)-(5) are inapplicable.

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Third, because Petitioner fails to claim that “there were ‘extraordinary

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circumstances’ beyond [his] control that prevented [him] from taking timely action to

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prevent or correct an [allegedly] erroneous judgment,” Rule 60(b)(6) is also

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inapplicable. See Franklin v. Scribner, 2008 WL 1817263, at *2 (C.D. Cal. Apr. 16,

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2008). In fact, Petitioner was able to file two additional state habeas petitions shortly

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after the Court’s October 3, 2015 dismissal. [Dkt. Nos. 18-4, 18-6.] Thus, there does

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not appear to have been any extraordinary circumstances preventing Petitioner from

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filing a timely motion for relief from judgment.

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As such, the Court accepts the finding and recommendation in the R&R, but

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notes one clarification: because the Petition was filed on April 25, 2016, [Dkt. No. 1 at

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9], it was untimely by one month when accounting for all statutory tolling. See 28

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U.S.C. § 2244(d)(1-2).

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