Vigas v. Harrington

Filing 34

ORDER DENYING 32 Petitioner's Motion for Relief From Judgment signed by District Judge Lawrence J. O'Neill on 7/27/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MIGUEL A. ZAVALA VIGAS,

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Petitioner,
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v.
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K. HARRINGTON, Warden,
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Respondent.
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____________________________________)

1:09-CV-01992 LJO GSA HC
ORDER DENYING PETITIONER’S
MOTION FOR RELIEF FROM JUDGMENT
[Doc. #32]

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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 August 10, 2010, the undersigned issued a final order dismissing the petition for violation

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of the statute of limitations. On September 22, 2010, Petitioner appealed to the Ninth Circuit Court

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of Appeals. On October 21, 2010, the appeal was denied as untimely.

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On July 21, 2011, Petitioner filed the instant motion for relief from judgment pursuant to
Federal Rules of Civil Procedure § 60(b).

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

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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:
(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);

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(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 fails to meet this standard for the following reasons. First, it is now nine months

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since the Ninth Circuit denied the appeal; it is clearly untimely. Second, Petitioner does not set forth

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any arguments that have not already been considered by this Court. Petitioner’s arguments present

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no basis for relief.

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Accordingly, Petitioner’s Motion for Relief from Judgment is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

July 27, 2011

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

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