Griffin v. Lewis

Filing 23

ORDER signed by Senior Judge James K. Singleton on 1/4/13 ORDERING THAT the "Objection to Magistrates Report and Recommendations," filed at Docket No. 21 , treated as a motion for relief from a final judgment under Federal Rule of Civil Pr ocedure 60, is DENIED; IT IS FURTHER ORDERED THAT the motion to appoint counsel at Docket No. 22 is DENIED; IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.(Becknal, R)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DAVID GRIFFIN,
No. 2:11-cv-01358-JKS
Petitioner,
vs.

ORDER
[Re: Motions at Docket Nos. 21, 22]

CONNIE GIPSON,1 Warden (A), California
State Prison, Corcoran
Respondent.

At Docket No. 21 David Griffin, a state prisoner appearing pro se, filed a document
entitled “Objection to Magistrates Report and Recommendations,” and at Docket No. 22 a
request to appoint counsel. The record indicates that on October 11, 2012, this Court entered its
Memorandum Decision and Judgment denying Griffin’s Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 22542. On November 28, 2012, Griffin filed an untitled document requesting
a thirty-day extension to respond.3 Treating Griffin’s untitled document at Docket No. 19 as a
motion to extend the time to appeal, this Court extended Griffin’s time to file a notice of appeal
through December 17, 2012.4 This Court lacks authority to further extend the time within which
to appeal.5
Motion at Docket No. 21
1

Connie Gipson, Warden (A), California State Prison, Corcoran, is substituted for G. D.
Lewis, Warden, Pelican Bay State Prison. Fed. R. Civ. P. 25(d).
2

Docket Nos. 17, 18.

3

Docket No. 19.

4

Docket No. 20. See Fed. R. App. P. 4(a)(5)(C).

5

Fed. R. App. P. 26(b)(1).

Griffin has mistakenly construed the Memorandum Decision entered by this Court as the
Report and Recommendation of a Magistrate Judge.6 Accordingly, Griffin’s “Objection to
Magistrates Report and Recommendations,”7 is inapposite. Because this court must liberally
construe a prisoner’s pro se pleadings,8 this Court will treat Griffin’s document filed at Docket
No. 21 as a timely motion for Relief from a Judgment of Order under Federal Rule of Civil
Procedure 60(b). That rule provides:
(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.
Nothing in Griffin’s motion justifies the granting of relief on the basis of either: mistake,
inadvertence, surprise, or excusable neglect (Rule 60(b)(1)); newly discovered evidence (Rule
60(b)(2)); fraud or misrepresentation (Rule 60(b)(3)); that the judgment is void (Rule 60(b)(4));
or that the judgment has been satisfied, reversed, or vacated (Rule 60(b)(5)). Only extraordinary

6

This matter was withdrawn from consideration by the Magistrate Judge. Docket No. 16.

7

See Fed. R. Civ. P. 72.

8

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620 F.3d
952, 958 (9th Cir. 2010).
2

circumstances justify relief under Rule 60(b)(6).9 Rule 60(b) is neither a substitute for appeal,10
nor a vehicle to rehash arguments that have been made and rejected, which is considered a
successive application for relief under § 2254.11 Accordingly, Griffin is not entitled to relief
from the judgment entered herein under Rule 60.
Motion at Docket 22
There is no constitutional right to counsel in federal habeas proceedings.12 Appointment
of counsel is not required in a habeas corpus proceeding in the absence of an order granting
discovery or an evidentiary hearing.13 This Court may appoint counsel under the Criminal Justice
Act in this case if the court determines that the interests of justice so require.14 Because this case
has been fully briefed and adjudicated on the merits, and the Court determined that no Certificate
of Appealability should be granted, this Court does not so determine.

9

See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (“[O]ur cases have required a movant
seeking relief under Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the reopening
of a final judgment.”).
10

Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981).

11

See Gonzalez, 545 U.S. at 530-34.

12

See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing Coleman v. Thompson,
501 U.S. 722, 756-57 (1991).
13

See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 6(a), 8(c)

(2012).
14

28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952,
954 (9th Cir. 1983) (“In deciding whether to appoint counsel in a habeas proceeding, the district
court must evaluate the likelihood of success on the merits as well as the ability of the petitioner
to articulate his claims pro se in light of the complexity of the legal issues involved.”).
3

IT IS HEREBY ORDERED THAT the “Objection to Magistrates Report and
Recommendations,” filed at Docket No. 21, treated as a motion for relief from a final judgment
under Federal Rule of Civil Procedure 60, is DENIED.
IT IS FURTHER ORDERED THAT the motion to appoint counsel at Docket No. 22 is
DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.15 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.16
Dated: January 4, 2013.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

15

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 325, 327 (2003))).
16

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
4