Robinson v. Asuncion
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/19/16 RECOMMENDING that petitioners motion for relief fromjudgment under Rule 60(b), filed July 11, 2016, (ECF No. 9 ), be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CLARK ROBINSON,
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No. 2:16-cv-1012 TLN GGH P
Petitioner,
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v.
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D. ASUNCION,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application
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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner’s motion
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to set aside the judgment, pursuant to Fed. R. Civ. P. 60(b)(2).
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By findings and recommendations and order, the petition was found to be successive to an
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earlier application attacking the conviction and sentence challenged in this case. (ECF Nos. 4, 7.)
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The petition was dismissed without prejudice to its re-filing upon obtaining authorization from
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the United States Court of Appeals for the Ninth Circuit. The previous application was filed on
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August 5, 2010, and was denied on the merits on May 7, 2012. See Robinson v. Cate, No. 2:10-
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cv-2089 LKK CHS. In the findings and recommendations, petitioner was informed that before he
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could proceed with the instant application, he must move in the United States Court of Appeals
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for the Ninth Circuit for an order authorizing the district court to consider the application. 28
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U.S.C. § 2244(b)(3). Petitioner was advised that even if the instant petition raises new evidence
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and actual innocence, the Court of Appeals must nevertheless review it. 28 U.S.C. 2244(b)(3).
Petitioner’s motion seeks to set aside the judgment on the basis that an exception to a
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successive petition is one which contains new evidence, as his does. In support he cites 28 U.S.C.
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§ 2244(b)(2)(B)(i)(ii). Petitioner is correct that an exception to dismissal of a successive petition
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is new evidence; however, this section is limited by subdivision (b)(3) which imposes a
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procedural prerequisite, the filing of a motion in the Court of Appeals for an order authorizing the
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district court to consider the application, based on the exceptions found in subdivision (b)(2)(B).
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It has long been the rule that Rule 60 may not be used to avoid the prohibition against
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second or successive petitions set forth in 28 U.S.C. § 2244(b). Gonzalez v. Crosby, 545 U.S.
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524, 531 (2005). The current motion therefore represents a successive challenge to the same
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2006 conviction at issue in the petition originally filed in this action, which has been found
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successive by this court. Accordingly, this court lacks jurisdiction to entertain the application
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unless the Court of Appeals for the Ninth Circuit has authorized this court to do so. See 28
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U.S.C. § 2244(b)(3)(A). See also, e.g., Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012)
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(“A petitioner must obtain leave from the Court of Appeals in order to file a ‘second or
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successive’ habeas petition with the district court.”). The current motion includes no information
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to suggest that petitioner has sought or received permission from the Court of Appeals to file the
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instant petition. In fact, petitioner argues that such a requirement is erroneous. (ECF No. 9 at 6.)
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Therefore, petitioner’s motion to set aside the judgment will be denied. Petitioner may refile his
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habeas application upon obtaining authorization from the United States Court of Appeals for the
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Ninth Circuit.
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Accordingly, IT IS HEREBY RECOMMENDED that: Petitioner’s motion for relief from
judgment under Rule 60(b), filed July 11, 2016, (ECF No. 9), be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the 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 Magistrate Judge’s
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Findings and Recommendations.” Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: July 19, 2016
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:076/Robi1012.60(b)
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