Proffitt v. Felker

Filing 27

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/9/09 ORDERING that petitioner's 26 motion for relief from the judgment is DENIED. (Yin, K)

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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 vs. T. FELKER, Warden, Respondent. / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. 2254. Currently pending before the court is his motion for relief from the judgment entered May 1, 2009. See Fed. R. Civ. P. 60(b). For the reasons explained below, the motion must be denied. A habeas petitioner may seek relief under Rule 60(b) of the Federal Rules of Civil Procedure. Gonzales v. Crosby, 545 U.S. 524, 535-36 (2005). The May 1, 2009, judgment was entered pursuant to this court's finding that it lacked jurisdiction over the habeas application because it was second or successive. See Burton v. Stewart, 549 U.S. 147, 152 (2007); Slack v. McDaniel, 529 U.S. 473, 485-486 (2000). In the instant motion, petitioner asserts that he has requested leave from the Ninth Circuit to proceed with a second habeas petition. He also outlines the arguments he has presented to that court. 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JERRY D. PROFFITT, Petitioner, No. CIV S-08-2680 EFB P ORDER 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 60(b): The various bases for setting aside a final judgment or order are enumerated in Rule (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. 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); (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. Fed. R. Civ. P. 60(b). This court dismissed petitioner's habeas application on the ground that it was second or successive and that this court lacked jurisdiction. The court found that petitioner had not demonstrated that the Ninth Circuit issued an order authorizing him to proceed with a second or successive petition. See 28 U.S.C. 2244 (b)(3)(A). Similarly, he fails to make any such showing in the instant motion. He merely asserts that he has requested such permission and he outlines the arguments presented to that court. Petitioner has not demonstrated that he is entitled to relief from the judgment under any of the criteria in Rule 60(b). Accordingly, it is ORDERED that petitioner's July 1, 2009, motion for relief from the judgment is denied. Dated: July 9, 2009. 2

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