Harper v. Chavez

Filing 19

ORDER signed by Magistrate Judge Gregory G. Hollows on 11/21/14 ordering that the clerk of the court shall transfer petitioner's motion for relief from judgment under Rule 60(b), filed 10/06/14 16 from this case and file in in Harper v. Tilton, No. 2:06-cv-1190 GHK. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD A. HARPER,

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No. 2:13-cv-0711 GGH P

Petitioner,
v.

ORDER

FRANK CHAVEZ,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a document styled “motion for

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F.R.C.P. Rule 60(b)(1)(2)(3), for Discovery of Exculpatory Evidence Lost/Found” which the

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court construes as an application for relief from final judgment, pursuant to Federal Rule of Civil

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Procedure 60(b).

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By his motion, plaintiff seeks all records, files and evidence pertaining to his underlying

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conviction and his previous habeas petition filed in this court, case number 2:06-cv-1190, as well

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as an order directing the superior court to provide these (now located) files to petitioner in order

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to substantiate his innocence. (ECF No. 16 at 2, 6.) The court’s order dismissing the current

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action as successive on May 29, 2013, noted that petitioner had previously filed two applications

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for a writ of habeas corpus attacking the same conviction and sentence challenged in this case.

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(Harper v. Tilton, CIV-06-1190 GHK P (denied on the merits), and Harper v. Tilton, case no. 12-

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cv-1032 CMK P (filed April 19, 2012 and transferred to the Ninth Circuit Court of Appeals as

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successive on July 6, 2012)).
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Petitioner now challenges this same state court conviction under Rule 60(b)(1)(2) and/or

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(3). He is not, however, attacking the judgment in this case finding the petition successive.

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Rather, he is attacking the 2006 judgment by appearing to claim that the state court intentionally

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withheld files from him, and incorrectly claimed those files were lost, which adversely impacted

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the outcome of his 2006 habeas petition. (ECF No. 16 at 3-5.) Therefore, it appears that

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petitioner’s motion for relief from judgment was inadvertently filed in the instant action, and

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should have been filed in the 2006 action.

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Accordingly, IT IS ORDERED that: the Clerk of the Court shall transfer petitioner’s
motion for relief from judgment under Rule 60(b), filed October 6, 2014, (ECF no. 16), from this

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case and file it in Harper v. Tilton, No. 2:06-cv-1190 GHK.

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Dated: November 21, 2014

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Harp0711.60b(2)

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