Howard Jerome Callier v. Ronald E. Barnes

Filing 43

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Cormac J. Carney for Motion to Set Aside 31 . The Court accepts the findings and recommendations set forth in the Report. Accordingly, IT IS ORDERED that the Motion is DISMISSED for lack of jurisdiction. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HOWARD JEROME CALLIER,

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Petitioner
v.
RONALD E. BARNES,
Respondent.

Case No. EDCV 12-1880-CJC (GJS)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

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Pursuant to 28 U.S.C. § 636, the Court has reviewed Petitioner’s “Motion to Set

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Aside Conviction” filed on September 4, 2015 (Docket No. 31, the “Motion”), all

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pleadings, motions, and other documents filed in this action, the Report and

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Recommendation of United States Magistrate Judge (“Report”), and Petitioner’s

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Objections to the Report. The Court has conducted a de novo review of those

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matters to which Objections have been stated.

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Petitioner’s first Objection is that he should be allowed to amend the Motion to

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plead an excuse for his lengthy delay in filing the Motion. Although the Report, in a

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footnote, observes that the Motion appears to be untimely, it also concludes that the

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Court lacks jurisdiction to consider the Motion at all and, thus, to consider the

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timeliness question. Specifically, the Report concludes that: the Motion asserts new

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grounds for relief and, thus, constitutes an improper attempt to use Fed. R. Civ. P.

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60(b) to avoid the requirements of 28 U.S.C. § 2244(b); and the Court, therefore,

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lacks jurisdiction to consider the Motion. Accordingly, as jurisdiction over the

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Motion is lacking, there is no reason to amend the Motion to address Petitioner’s

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delay.

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Petitioner’s second Objection is that he should be allowed to amend the Motion to

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omit his new claims. However, Petitioner does not identify any basis for Rule 60(b)

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relief that he would proffer other than his new habeas claim assertions, even though

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he has had ample time to do so. Petitioner’s failure to proffer any manner in which

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his Motion could be amended to state a viable request for relief under Rule 60(b)(6)

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precludes finding that amendment is warranted.
Finally, Petitioner objects that the Report should be set aside so that he may seek

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leave – from the United States Court of Appeals for the Ninth Circuit – to bring a

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second or successive habeas petition. As explained in the Report, however, this

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Court has no jurisdiction to consider the instant attempt to raise second or

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successive claims and, thus, dismissal is required. Should Petitioner obtain leave

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from the Ninth Circuit to file a second or successive habeas petition in this district,

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he then may do so.

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The Court accepts the findings and recommendations set forth in the Report.

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Accordingly, IT IS ORDERED that the Motion is DISMISSED for lack of

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jurisdiction.

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DATE: January 26, 2016

__________________________________
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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