Magana-Torres v Harrington

Filing 42

ORDER signed by Senior Judge William B. Shubb on 3/1/19 DENYING 39 petitioner's motion for relief from judgment. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE HUMBERTO MAGANA-TORRES,

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No. 2:10-CV-2669-WBS-DMC-P

Petitioner,
v.

ORDER

KELLY HARRINGTON,
Respondent.

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Petitioner, a state prisoner proceeding pro se, brought this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Final judgment was entered on July 6, 2012 (Doc.

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32) and petitioner’s appeal from that judgment has been dismissed by the Ninth Circuit Court of

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Appeals for lack of jurisdiction (Doc. 37) because petitioner raised issues not encompassed by the

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district court’s certificate of appealability and the appellate court declined to expand the

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certificate of appealability to encompass the issues raised by petitioner. Pending before the court

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is petitioner’s motion (Doc. 39) for relief from the court’s July 6, 2012, judgment pursuant to

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Federal Rule of Civil Procedure 60(b)(6).

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Under Rule 60(b), the court may grant reconsideration of a final judgment and

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any order based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence which, with reasonable diligence, could not have been discovered within

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ten days of entry of judgment; and (3) fraud, misrepresentation, or misconduct of an opposing
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party. See Fed. R. Civ. P. 60(b)(1)-(3). A motion for reconsideration on any of these grounds

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must be brought within one year of entry of judgment or the order being challenged. See Fed.

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R. Civ. P. 60(c)(1). Under Rule 60(b), the court may also grant reconsideration based if: (1)

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the judgment is void; (2) the judgement has been satisfied, released, or discharged, an earlier

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judgment has been reversed or vacated, or applying the judgment prospectively is no longer

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equitable; and (3) any other reason that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6). A

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motion for reconsideration on any of these grounds must be brought “within a reasonable

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time.” Fed. R. Civ. P. 60(c)(1).

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According to petitioner, “extraordinary circumstances” exist for granting relief

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under Rule 60(b)(6), specifically an intervening change in the law. Petitioner asserts the

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California Supreme Court announced a change in law in 2014 in People v. Chiu, 59 Cal. 4th 155

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(2014). Thus, petitioner was aware, or should have been aware, of the basis of his Rule 60(b)(6)

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argument in 2014. The court finds petitioner did not file the instant motion within a “reasonable

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time,” having waited approximately four years since Chiu was decided. For this reason,

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petitioner’s motion under Rule 60(b)(6) is denied. To the extent the court were to consider

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petitioner’s motion under Rule 59(e), it would likewise be untimely because it was not filed

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within 28 days of the date of entry of judgment.

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IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment

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(Doc. 39) be, and the same hereby is, DENIED.

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Dated: March 1, 2019

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