Capps v. Ndoh

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 03/30/17 denying 14 Motion to open this case, construed as a motion for relief from judgment pursuant to Rule 60(b). Petitioner is hereby 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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHILLIP LYNN CAPPS,

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No. 2:16-cv-0981-EFB P

Petitioner,
v.

ORDER

R. NDOH, Warden,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254.1 His petition was dismissed as second or successive and judgment was duly

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entered. ECF Nos. 7 & 8. He now moves to “open” this case, which the court construes as a

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motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

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Reconsideration is appropriate if the court (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993). Additionally, Rule 60(b) of the Federal Rules of Civil Procedure provides as

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follows:

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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).
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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,
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.
Here, petitioner has not shown that any circumstances exist to justify the requested relief.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to “open” this case,
construed as a motion for relief from judgment pursuant to Rule 60(b) (ECF No. 14), is denied.

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Petitioner is hereby reminded that the court will not respond to future filings in this action that are

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not authorized by the Federal Rules of Civil Procedure or the Federal Rules of Appellate

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Procedure.

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DATED: March 30, 2017.

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