Mitchell v. Soto
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/24/2014 DIRECTING the Clerk to serve a copy of these findings and recommendations on the CA Attorney General; and RECOMMENDING that plaintiff's 8 mo tion for reconsideration filed on 9/8/2014, construed as a motion for relief from judgment pursuant to Rule 60(b) be granted; the 8/22/2014 order of dismissal and judgment be vacated; and this action proceed with service of the petition. Referred to Judge Troy L. Nunley; Objections due within 14 days. (cc: Michael Farrell)(Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NEANO MITCHELL,
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Petitioner,
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No. 2:14-cv-1438 TLN GGH P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
JOHN SOTO,
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Respondent.
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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. On August 22, 2014, the district court adopted this court’s
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findings and recommendations, recommending that the petition be dismissed for failure to
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exhaust state remedies. Judgment was entered at that time. On September 8, 2014, petitioner
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filed a “motion for reconsideration” which the court construes as a motion for relief from
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judgment under Fed. R. Civ. P. 60(b).
Under Rule 60(b), a party may seek relief from judgment and to re-open his case in
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limited circumstances, “including fraud, mistake, and newly discovered evidence.” Gonzalez v.
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Crosby, 545 U.S. 524, 528, 125 S. Ct. 2641, 2645-46 (2005). Rule 60(b) provides in relevant
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part:
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On motion and upon such terms as are just, the court may relieve a
party ... from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
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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 ..., misrepresentation, or 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. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding was entered or taken.
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“Motions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of
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Civil Procedure are addressed to the sound discretion of the district court.” Allmerica Financial
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Life Insurance and Annuity Company v. Llewellyn,139 F.3d 664, 665 (9th Cir. 1997).
Petitioner explains that he has been hampered in bringing to the court’s attention the fact
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that he has exhausted all of his state remedies because he is a “participant in the Mental Health
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Services Delivery System (MHSDS) at the Enhanced Outpatient (EOP) level of care, which is “a
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special program for prisoners who are gravely mentally disable[d].” Petitioner adds that he has a
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fourth grade education and has had to rely on jailhouse lawyers.
The attachments to the motion include the first two pages of a petition filed with the
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Supreme Court of California on May 2, 2014, and that court’s denial, filed July 9, 2014. The
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instant federal petition was filed on June 16, 2014, and dismissed on August 22, 2014. Because it
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now appears from the limited attachments that petitioner has exhausted his state court remedies,
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his motion for relief should be granted, and this case should proceed.
In accordance with the above, IT IS ORDERED that: The Clerk of the Court is directed
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to serve a copy of these findings and recommendations on the Attorney General of the State of
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California.
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IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion for reconsideration, filed September 8, 2014, construed as a motion
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for relief from judgment pursuant to Rule 60(b), (ECF No. 8), be granted;
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2. The order of dismissal and judgment entered August 22, 2014, be vacated; and
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3. This action proceed with service of the petition.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Findings and
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Recommendations.” Petitioner is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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Dated: September 24, 2014
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:076/Mitch1438.60b
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