Fosselman v. Evans

Filing 44

ORDER signed by District Judge Lawrence J. O'Neill on 5/11/2011 denying 39 Motion for relief from Judgment. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LORENZO FOSSELMAN, JR.,

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Petitioner,
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v.
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M. S. EVANS, Warden,
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Respondent.
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____________________________________)

1:07-CV-00812 LJO GSA HC
ORDER DENYING PETITIONER’S
MOTION FOR RELIEF FROM JUDGMENT
[Doc. #39]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On December 3, 2008, the undersigned issued an order denying the petition. Judgment was

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entered the same date. On January 12, 2009, Petitioner filed an untimely notice of appeal; the

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appeal was processed to the Ninth Circuit. On April 26, 2010, the Ninth Circuit denied Petitioner’s

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request for certificate of appealability for failure to file a timely notice of appeal. Petitioner filed a

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petition for rehearing in the Ninth Circuit, which the Ninth Circuit construed as a motion for

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reconsideration. On June 29, 2010, the motion was denied. On March 21, 2011, Petitioner filed the

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instant motion for relief from judgment or order pursuant to Rule 60(b) of the Federal Rules of Civil

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Procedure. Respondent filed an opposition to Petitioner’s motion on May 4, 2011.

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Rule 60(b) of the Federal Rules of Civil Procedure provides:

U .S. D istrict C ourt
E. D . C alifornia

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On motion and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:

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(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 (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.

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Petitioner asks that the Court reopen the time for filing an appeal. He states he was
undergoing exceptional circumstances outside of his control. As noted by Respondent, Rule 60(b) is

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not the appropriate vehicle for relief. Because of the procedural posture of this case, Rule 4 of the

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Federal Rules of Appellate Procedure governs. Under Rule 4(a)(6), the Court may reopen the time to

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file an appeal if: 1) the Court finds that Petitioner did not receive notice of the entry of judgment

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within 21 days after entry; 2) the motion is filed within 180 days after judgment is entered or within

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14 days after Petitioner received notice; and 3) the Court finds that no party would be prejudiced. In

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this case, judgment was entered on December 3, 2008. Petitioner admits he received notice “some 2

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weeks later,” or “after December 12, 2008.” (See Pet’r’s Mot. and Decl. of Pet’r attached to Mtn.)

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Thus, the Court finds Petitioner received notice within 21 days of the judgment. Further, Petitioner

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did not request that the Court reopen the time to file an appeal within the prescribed time.

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Consequently, Petitioner is not entitled to relief under Rule 4(a)(6). Moreover, as Respondent points

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out, the Court is unable to grant the relief Petitioner seeks. The Federal Rules of Appellate

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Procedure override Rule 60(b) of the Federal Rules of Civil Procedure. See Clark v. Lavallie, 204

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F.3d 1038 (10th Cir. 2000). In any case, the Ninth Circuit has already denied Petitioner’s motion for

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relief from judgment.

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Accordingly, Petitioner’s motion for relief from judgment or order is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

May 11, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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U .S. D istrict C ourt
E. D . C alifornia

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