Dustin v. Gipson, et al.

Filing 22

ORDER signed by Judge Garland E. Burrell, Jr., on March 13, 2015. Petitioners Rule 60(b) motion fails to demonstrate that he is entitled to relief from judgment. Accordingly, that motion, (ECF No. 17 ), is DENIED. Petitioners motion for appointment of counsel, (ECF No. 18 ), is also DENIED. (Rivas, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DALE OWEN DUSTIN,

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No. 2:11-cv-02752-GEB-JFM

Petitioner,
v.

ORDER

GIPSON, Warden,
Respondent.

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Petitioner, a state prisoner proceeding pro se, filed an application for a writ of

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habeas corpus under 28 U.S.C. ' 2254. On March 7, 2012, an order was filed, (ECF No. 7), which

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adopted the Magistrate Judge’s February 7, 2012 Findings and Recommendations, (ECF No. 5),

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in full, dismissed the habeas petition, denied Petitioner’s November 30, 2011 motion for

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temporary restraining order, and declined to issue a certificate of appealability. Judgment was

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entered accordingly on the same day. (ECF No. 8.) Petitioner now seeks relief from final

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judgment under Federal Rule of Civil Procedure 60(b), (ECF No. 17), and the appointment of

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counsel, (ECF No. 18).

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Rule 60(b) of the Federal Rules of Civil Procedure provides:
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.
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Petitioner’s Rule 60(b) motion fails to demonstrate that he is entitled to relief from

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judgment. Accordingly, that motion, (ECF No. 17), is denied. Petitioner’s motion for appointment

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of counsel, (ECF No. 18), is also denied.

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Dated: March 13, 2015

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