Abramyan v. Virga

Filing 33

ORDER signed by Magistrate Judge Dale A. Drozd on 4/30/2015 DENYING petitioner's 32 motion "for leave to file Rule 60(B) motion". (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VARDAN ABRAMYAN,

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No. 2:13-cv-0258 JAM DAD P

Petitioner,

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v.

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TIM V. VIRGA,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding through counsel with an application for a writ of

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habeas corpus in the above entitled action. On October 9, 2014, the undersigned issued findings

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and recommendations recommending that petitioner‟s application for habeas relief be denied.

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Petitioner did not file objections to those findings and recommendations nor did he request a

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certificate of appealability. On November 21, 2014, the assigned district judge adopted the

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findings and recommendations, habeas relief was denied, this action was dismissed and judgment

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was entered. On December 16, 2014, petitioner filed a notice of appeal. Petitioner has now filed

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a request for leave to file a motion pursuant to Federal Rule of Civil Procedure 60(b), arguing that

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abandonment by his attorney precluded him from filing objections to the October 9, 2014 findings

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and recommendations and/or a request for a certificate of appealability.

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Petitioner‟s filing of a timely notice of appeal divested this court of jurisdiction to
consider a Rule 60(b) motion filed more than 10 days after entry of judgment. See Stein v.
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Wood, 127 F.3d 1187, 1189 (9th Cir. 1997); see also Davis v. Yageo Corp., 481 F.3d 661, 685

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(9th Cir. 2007) (“Once an appeal is filed, the district court no longer has jurisdiction to consider

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motions to vacate judgment.”); Gould v. Mutual Life Insurance Co., 790 F.2d 769, 772 (9th Cir.

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1986) (“Unless the appellate court remands to the district court, the latter is without jurisdiction to

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consider the motion to vacate judgment.”) To seek Rule 60(b) relief during the pendency of an

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appeal, “„the proper procedure is to ask the district court whether it wishes to entertain the

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motion, or to grant it, and then move [the Court of Appeals], if appropriate, for remand of the

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case.‟” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (citations omitted). See also

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Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1113 n.21 (9th Cir. 1989) (same); McKinley v.

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McDonald, No. C 12-5048 RS(PR), 2013 WL 210244, at *1 (N.D. Cal. Jan. 17, 2013) (same). In

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the pending motion, petitioner requests that this court indicate “its willingness to entertain” a

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motion to vacate the final order and judgment in this case pursuant to Rule 60(b)(6).

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Under Federal Rule of Civil Procedure 60(b), a party may seek relief from judgment and

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to re-open his case only in limited circumstances. Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).

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Rule 60(b) provides in relevant part:

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On motion and just terms, the court may relieve a party . . . from a
final judgment, order, or proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.

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Fed. R. Civ. P. 60(b). “Judgments are not often set aside under Rule 60(b)(6).” Latshaw v.

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Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006). The Ninth Circuit has

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observed that:

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Rule 60(b)(6) has been used sparingly as an equitable remedy to
prevent manifest injustice. The rule is to be utilized only where
extraordinary circumstances prevented a party from taking timely
action to prevent or correct an erroneous judgment.
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United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). To obtain

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relief under Rule 60(b)(6), “a party must demonstrate extraordinary circumstances which

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prevented or rendered him unable to prosecute his case.” Lal v. California, 610 F.3d 518, 524

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(9th Cir. 2010) (citation and internal punctuation marks omitted). Rule 60(b)(6) is reserved “only

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[for] truly „extraordinary circumstances.‟” Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011).

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See also Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (Courts are directed to grant relief under

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Rule 60(b)(6) only in “extraordinary circumstances where, without such relief, an extreme and

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unexpected hardship would occur.”) (citing Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir.

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1993)). In short, Rule 60(b)(6) “requires a showing of extraordinary circumstances that justify

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reopening a judgment.” Pizzuto v. Ramirez, ___ F.3d ___, 2015 WL 1810912, at *3 (9th Cir.

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Apr. 22, 2015.) Motions seeking relief under Rule 60(b) are addressed to the sound discretion of

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the district court. Yusov v. Yusuf, 892 F.2d 784, 787 (9th Cir. 1989); Thompson v. Housing

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Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir. 1986); Rodriguez v. Bowen, 678 F. Supp.

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1456, 1458 (E.D. Cal. 1988).

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The October 9, 2014 findings and recommendations advised that within fourteen days

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after being served, any party could file written objections with the court. This gave petitioner

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until October 23, 2014 to file his objections. Petitioner explains that he received a letter from his

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then counsel, dated November 10, 2014, in which counsel explained that his secretary, who was

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responsible for “copying and putting this matter on my desk,” did not do so until “the week after

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the time expired to file an objection to the recommendation.” (ECF No. 32 at 3.) In the letter,

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petitioner‟s former counsel acknowledged that he had been paid “up to and through a habeas

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decision by the district court.” (Id.) However, he advised petitioner that he would “leave [it] to

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other counsel” to file an appeal. Counsel stated that he did not believe an appeal was legally

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viable, but he offered to copy the file and provide it to another attorney if petitioner decided to

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file an appeal. (Id.) Petitioner argues that his prior counsel did not inform him of his right “to

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proceed in pro se” or give him the necessary forms with which to do so. (Id. at 4.) Petitioner

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also complains that his prior counsel failed to advise him that failure to object to the findings and

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recommendations waives the right to challenge the magistrate judge‟s factual findings. (Id.)
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Petitioner states that by the time he received his former counsel‟s letter, the assigned

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District Judge had denied his habeas petition and closed the case. (Id.) Immediately after

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receiving notice that his habeas petition had been denied, he sought the advice of new counsel as

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to “how to handle the situation and any remedies available.” (Id. at 5.) Petitioner‟s new counsel

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filed a timely notice of appeal in the Ninth Circuit Court of Appeals and a “request for certificate

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of appealability/motion for limited remand.”1

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Petitioner argues that his former attorney, who was retained to fully prosecute his federal

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habeas petition, “abandoned him” after discovering that he missed the deadline for filing

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objections to the October 9, 2014 findings and recommendations. Petitioner argues that this

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“abandonment” resulted in the denial of his habeas petition and of a certificate of appealability

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“without the benefit of representation by counsel or an opportunity for petitioner to represent

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himself in pro se.” (Id.) Petitioner states that “if this court indicates a willingness to entertain a

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motion to vacate pursuant to Rule 60(b) and the 9th Circuit grants a limited remand for it to do so,

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petitioner file [sic] a motion to vacate the judgment on the basis of attorney abandonment and will

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seek to have the case restored to the posture that it was in when the Magistrate Judge‟s Findings

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and Recommendations were filed.” (Id.) Specifically, petitioner seeks “an opportunity for new

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counsel to file a motion to vacate the judgment for purposes of allowing objections to be filed.”

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(Id. at 4.)

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Petitioner must meet the stringent requirements imposed by Rule 60(b)(6) in order to

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prevail on a motion to set aside the judgment in this case. He has failed to do so. Petitioner

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argues that due to his former counsel‟s neglect and negligence, he was deprived of the

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opportunity to file objections to the October 9, 2014 findings and recommendations and a request

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for a certificate of appealability. However, petitioner has failed to explain how his failure to file

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these documents resulted in a miscarriage of justice. The October 9, 2014 findings and

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recommendations were reviewed de novo by the assigned district judge and adopted without

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revision. Petitioner has not demonstrated how the filing of objections to the findings and

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Petitioner represents that a copy of this motion has been attached as an exhibit to the instant
motion, but the attachment does not appear to have been filed with this court.
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recommendations would have resulted in a different outcome. Further, petitioner retains the

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opportunity to appeal the judgment in this case to the Ninth Circuit Court of Appeals,

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notwithstanding his failure to file objections to the findings and recommendations. Baxter v.

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Sullivan, 923 F.2d 1391, 1394-95 (9th Cir. 1991). Although the failure to file objections waives

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the right to challenge the magistrate judge‟s findings of fact, Turner v. Duncan, 158 F.3d 449, 455

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(9th Cir. 1998), petitioner has not demonstrated that any of the findings or fact made in

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connection with the undersigned‟s recommendation were incorrect.
With regard to petitioner‟s failure to request a certificate of appealability, the Court of

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Appeals has the authority to grant a certificate of appealability if it determines that petitioner has

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made “a substantial showing of the denial of a constitutional right” as to any of his claims. This

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is true even though the district judge declined to issue a certificate of appealability. 28 U.S.C. §

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2253((c); Fed. R.App. P. 22(b)(1) (“In a habeas corpus proceeding in which the detention

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complained of arises from process issued by a state court, . . . the applicant cannot take an appeal

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unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28

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U.S.C. § 2253(c). . . . If the district judge has denied the certificate, the applicant may request a

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circuit judge to issue the certificate.”); Valerio v. Crawford, 306 F.3d 742, 763-64 (9th Cir. 2002)

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(same).

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Petitioner has not made any showing that the judgment in this case is legally or factually

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erroneous. Nor has he demonstrated that equitable relief is necessary in order to prevent a

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miscarriage of justice or that denying him the relief he seeks would result in “an extreme and

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unexpected hardship.” Cox, 757 F.3d at 120. This court also notes that relief under Rule 60(b) is

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not available for ignorance, carelessness, or inexcusable neglect based on the actions of the

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petitioner‟s attorneys. See Latshaw, 452 F.3d at 1100-01 (declining to grant relief from judgment

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based upon alleged attorney-based mistakes of law and noting that “this includes not only an

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innocent, albeit careless or negligent, attorney mistake, but also intentional attorney

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misconduct”); Jones v. United States, 255 F.3d 507, 511-12 (8th Cir. 2001) (“[a]n attorney‟s

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ignorance or carelessness is not cognizable under Rule 60(b).”). The Ninth Circuit has explained

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that “[n]eglect or lack of diligence is not to be remedied through Rule 60(b)(6).” Lehman v.
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United States, 154 F.3d 1010, 1017 (9th Cir. 1998). Accordingly, even assuming arguendo that

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through the carelessness or inexcusable neglect of petitioner‟s former counsel petitioner failed to

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file both objections to the October 9, 2014 findings and recommendations and a request for a

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certificate of appealability, petitioner would not be entitled to relief from judgment under Rule

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60(b).

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For all of the foregoing reasons, IT IS HEREBY ORDERED that petitioner‟s motion “for

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leave to file Rule 60(B) motion” (ECF No. 32) is denied.

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Dated: April 30, 2015

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DAD:8
Abramyan258.60b

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