Baker v. Davey

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 06/29/15 denying 7 Motion to vacate the judgment. Petitioner is reminded that the court will not respond to future filings in this action that are not authorized by the Federal Rules of Civil Procedure or the Federal Rules of Appellate Procedure. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT GUY BAKER, 11 No. 2:15-cv-793-EFB P Petitioner, 12 v. 13 DAVE DAVEY, 14 ORDER Respondent. 15 16 Petitioner, a state prisoner proceeding without counsel, sought a writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254.1 His petition was dismissed as second or successive and judgment 18 was duly entered. ECF Nos. 5, 6. He now moves to vacate the judgment. ECF No. 7. 19 Reconsideration is appropriate if the court (1) is presented with newly discovered 20 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is 21 an intervening change in controlling law. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 22 (9th Cir. 1993). Additionally, Rule 60(b) of the Federal Rules of Civil Procedure provides as 23 follows: 24 25 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, 26 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 2 3 4 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. 5 6 Petitioner argues that if he amends his petition to delete ground three of the original 7 petition, his petition will no longer be second or successive. The argument lacks merit. Claims 8 one and two of the proposed amended petition still challenge the same judgment of conviction 9 that petitioner challenged in an earlier action. Since petitioner continues to challenge the same 10 judgment that he previously challenged in this court, and which was adjudicated on the merits, the 11 petition remains second or successive. Thus, petitioner has not shown that circumstances exist to 12 justify the requested relief. 13 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to vacate the judgment 14 (ECF No. 7) is denied. Petitioner is hereby reminded that the court will not respond to future 15 filings in this action that are not authorized by the Federal Rules of Civil Procedure or the Federal 16 Rules of Appellate Procedure. 17 DATED: June 29, 2015. 18 19 20 21 22 23 24 25 26 27 28 2

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