Chestang v. Swarthough

Filing 10

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/26/12 ORDERING that petitioners motions for relief from judgment pursuant to Rule 60(b) (Docs. 8 , 9 ) are GRANTED and the case shall be reopened; Petitioner shall file an amended petition within 21 days. (Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

DANIEL K. CHESTANG,

11

Petitioner,

12

vs.

13

No. 2:12-cv-0737 GGH P

SWARTHOUT,

14
15
16

Respondent.

ORDER
/

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas

17

corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to petitioner’s

18

consent. Doc. 4. On April 23, 2012, the court screened the petition and dismissed it with one

19

opportunity to amend in 28 days. Petitioner did not file an amended petition so the case was

20

dismissed and closed on July 3, 2012, for failure to follow court instructions. On August 28,

21

2012, petitioner filed a motion for reconsideration that the court construes as a motion pursuant

22

to Fed. R. Civ. P. 60(b), for relief from final judgment.

23

Under Rule 60(b), a party may seek relief from judgment and to re-open his case

24

in limited circumstances, “including fraud, mistake, and newly discovered evidence.” Gonzalez

25

v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641 (2005). A purported Rule 60(b) motion seeking to

26

reopen the judgment of an initial habeas petition brought pursuant to 28 U.S.C. § § 2254, 2255 is
1

1

in essence a successive petition, under 28 U.S.C. § 2244(b) where it “seeks to add a new ground

2

for relief,” or “if it attacks the federal court's previous resolution of a claim on the merits ...”

3

Gonzalez, at 532. “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a

4

state court's judgment of conviction.” Id., at 530.

5

Petitioner states that he never received the court’s screening order that allowed

6

him to file an amended petition and only became aware of it when he received the July 3, 2012,

7

order dismissing the case. Petitioner seeks to now be allowed to file an amended petition. As

8

petitioner is not seeking to add a new ground for relief, rather just file an amended petition as the

9

court first provided, the motion will be granted as this is not a successive petition. Petitioner

10

shall file an amended petition within 21 days.

11

Accordingly, IT IS HEREBY ORDERED that

12

1. Petitioner’s motions for relief from judgment pursuant to Rule 60(b) (Docs. 8,

13

9) are granted and the case shall be reopened;

14
15

2. Petitioner shall file an amended petition within 21 days.
DATED: September 26, 2012

16
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

17
18
19

GGH: AB
ches0737.60b

20
21
22
23
24
25
26
2