Isreal, et al v. Sullivan

Filing 37

ORDER GRANTING 35 MOTION for RECONSIDERATION re 33 Order Adopting Findings and Recommendations, filed by Michael Isreal, signed by Judge Anthony W. Ishii on 03/13/2007. Motion terminated: 35. Objections to the Findings and Recommendations due by 4/16/2007. (Martin, S)

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(HC) Isreal, et al v. Sullivan Doc. 37 Case 1:04-cv-05064-AWI-SMS Document 37 Filed 03/14/2007 Page 1 of 3 1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 J. SULLIVAN, Warden, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 On January 3, 2007, the undersigned denied the petition for writ of habeas corpus and 18 judgment was entered in favor of Respondent. (Court Docs. 33, 34.) 19 Now pending before the Court is Petitioner's motion for reconsideration, filed January 20 16, 2007. (Court Doc. 35.) 21 In his motion, Petitioner states that he never received and was unaware of the Findings 22 and Recommendations issued October 19, 2006, due to his temporary transfer to a different 23 prison. (Motion, at 1.) Therefore, Petitioner requests that the Court send him a copy of the 24 Findings and Recommendations and grant him the opportunity to file objections. (Id.) 25 Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, 26 27 28 the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud 1 Dockets.Justia.com UNITED STATES DISTRICT COURT MICHAEL ISREAL, Petitioner, v. CV F 04-5064 AWI SMS HC ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION [Doc. 35] / Case 1:04-cv-05064-AWI-SMS Document 37 Filed 03/14/2007 Page 2 of 3 1 2 3 4 5 (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick 6 7 Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly convincing 8 nature to induce the court to reverse its prior decision. See e.g., Kern-Tulare Water Dist. v. City 9 of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other 10 11 has held that "[c]lause 60(b)(6) is residual and `must be read as being exclusive of the preceding 12 13 14 clause is reserved for `extraordinary circumstances.'" Id. 15 Petitioner has demonstrated extraordinary circumstances warranting relief from judgment, 16 in that he never received a copy of the Findings and Recommendations and was therefore unable 17 to file objections. Accordingly, the Court will grant Petitioner's motion for reconsideration, 18 forward a copy of the Findings and Recommendations, and grant Petitioner the opportunity to 19 file objections. 20 Based on the foregoing, it is HEREBY ORDERED that: 21 1. 22 2. 23 therefrom are VACATED; 24 3. 25 Recommendations, issued October 19, 2006; and 26 27 28 2 The Clerk of Court is directed to forward Petitioner a copy of the Findings and The order adopting and the Findings and Recommendations and judgment entered Petitioner's motion for reconsideration is GRANTED; clauses.'" LaFarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir. 1986), quoting Corex Corp. v. United States, 638 F.2d 119 (9th Cir. 1981). Accordingly, "the grounds, 828 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988). The Ninth Circuit Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Case 1:04-cv-05064-AWI-SMS Document 37 Filed 03/14/2007 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Within thirty (30) days from the date of service of this order, Petitioner may file objections to the Findings and Recommendations. IT IS SO ORDERED. Dated: 0m8i78 March 13, 2007 /s/ Anthony W. Ishii UNITED STATES DISTRICT JUDGE 3

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