Anthony v. Garza
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 12/11/20 RECOMMENDING that petitioner's motion to continue his habeas petition 23 , construed as a motion for relief from judgement pursuant to Rule 60(b) be denied. Motion 23 referred to Judge Dale A. Drozd. Objections due within 14 days.(Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARK ANTHONY,
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Petitioner,
Case No. 1:18-cv-00096-DAD-JDP (HC)
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v.
FINDINGS AND RECOMMENDATIONS
THAT COURT DENY PETITIONER’S
MOTION FOR RELIEF FROM JUDGMENT
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JOHN GARZA,
OBJECTIONS DUE IN FOURTEEN DAYS
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Respondent.
ECF No. 23
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Petitioner Mark Anthony, a state prisoner proceeding without counsel, brought this habeas
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action on December 8, 2017. ECF No. 1. Petitioner then filed a motion to stay the petition and
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hold it in abeyance pending exhaustion of state court remedies. ECF No. 18. On March 27,
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2018, Magistrate Judge Seng recommended that the motion to stay be denied because petitioner
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had not shown good cause for failing to exhaust sooner. 1 ECF No. 19 at 4. On July 18, 2018,
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Judge Seng’s recommendations were adopted by Judge Drozd, and the petition was dismissed
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because it contained only unexhausted claims. ECF No. 21. More than two years later, petitioner
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filed a motion to continue his habeas petition. ECF No. 23. In his motion, petitioner states that
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he has now fully exhausted the claims in the dismissed petition and requests that petition he filed
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The case was reassigned to me in April of 2018, after Judge Seng had filed his
recommendations. ECF No. 20.
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in 2017 be allowed to proceed. Id. at 2-3. Given the posture of this case, I construe his motion as
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one for relief from judgment under Federal Rule of Civil Procedure 60(b). I recommend that his
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motion be denied.
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Under Rule 60(b), a party may request reconsideration of a final order or judgment. Fed.
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R. Civ. P. 60(b). There are five circumstances identified in the rule that justify reopening final
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judgment: (1) mistake, (2) newly discovered evidence, (3) fraud by the opposing party, (4) the
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judgment is void, or (5) the judgment has been satisfied, released, or discharged. Fed. R. Civ. P.
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60(b)(1)-(5). There is also a final catch-all category that allows for reconsideration for “any other
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reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
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More than two years have passed since Judge Drozd dismissed this case. It appears that
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petitioner spent that time exhausting his claims in state court. ECF No. 23 at 2. But the basis for
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dismissal was that petitioner was not entitled to a stay. Granting petitioner’s motion and allowing
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him to “continue” this case now that exhaustion has been completed would effectively grant him
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the stay that the court found unwarranted. And petitioner has not offered any argument that Judge
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Drozd was wrong to deny the motion for stay.2 Finally, as a procedural matter, the petition
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cannot “continue” because it was dismissed without prejudice and, thus, is no longer operative.
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See United States v. California, 932 F.2d 1346, 1351 (9th Cir. 1991) (stating that the legal effect
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of a dismissal without prejudice is to render the action as if it had never been filed).
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If petitioner wishes to reassert his claims now that they have been exhausted in state court,
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he should file a new petition in a separate case. See, e.g., Hernandez v. Montgomery, No. CV 19-
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2727-AB (KS), 19-2019 U.S. Dist. LEXIS 227526, *7 (C.D. Cal. 2019) (noting that where a
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court dismisses a petition “there would be no petition to stay, and no ability to file an amended
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petition—Petitioner would need to file a new petition in a new action against Respondent”).
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Such argument would be time-barred. Under Rule 60, any argument that the judgment
was mistaken must be brought within one-year of the entry of judgment. Fed. R. Civ. P. 60(c)(1).
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I recommend that petitioner’s motion to continue his habeas petition, ECF No. 23, which I
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construe as a motion for relief from judgment pursuant to Rule 60(b), be denied.
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These findings and recommendations are submitted to the U.S. District Court Judge
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presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of
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Practice for the United States District Court, Eastern District of California. Within fourteen days
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of service of the findings and recommendations, any party may file written objections to the
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findings and recommendations with the court and serve a copy on all parties. That document
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must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
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District Judge will then review the findings and recommendations under 28 U.S.C.
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§ 636(b)(1)(C).
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IT IS SO ORDERED.
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Dated:
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December 11, 2020
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
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